Billing Code: 6570-01-P EQUAL EMPLOYMENT OPPORTUNITY

Billing Code: 6570-01-P

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1636

RIN 3046-AB30

Implementation of the Pregnant Workers Fairness Act

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule and interpretive guidance.

SUMMARY: The Equal Employment Opportunity Commission is issuing this final rule and

interpretive guidance to implement the Pregnant Workers Fairness Act, which requires a covered

entity to provide reasonable accommodations to a qualified employee’s or applicant’s known

limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions, unless the accommodation will cause an undue hardship on the operation of the

business of the covered entity.

DATES: This final rule and interpretive guidance is effective on [INSERT DATE 60 DAYS

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT: Sharyn Tejani, Associate Legal Counsel,

Office of Legal Counsel at 202-900-8652 (voice), 1-800-669-6820 (TTY),

[email protected]. Requests for this final rule and interpretive guidance in an alternative

format should be made to the Office of Communications and Legislative Affairs at (202) 921-

3191 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).

This document is scheduled to be published in the

Federal Register on 04/19/2024 and available online at

https://federalregister.gov/d/2024-07527, and on https://govinfo.gov

SUPPLEMENTARY INFORMATION:

Introduction

The Pregnant Workers Fairness Act (PWFA)

requires a covered entity to provide

reasonable accommodations to a qualified employee’s or applicant’s known limitations related

to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent

undue hardship on the operation of the business of the covered entity. The PWFA at 42 U.S.C.

2000gg–3(a) directs the Equal Employment Opportunity Commission (EEOC or Commission) to

promulgate regulations to implement the PWFA.

The Commission issued its notice of proposed rulemaking (NPRM) on August 11, 2023,

and invited public comment on this proposal from August 11, 2023, through October 10, 2023.

Members of the public submitted approximately 98,600 comments to the EEOC during this 60-

day period. Several of those comments were signed by multiple individuals; thus, the total

number of comments was over 100,000.

Pursuant to 42 U.S.C. 2000gg–3(a), the Commission is issuing this final regulation and

an appendix entitled “Appendix A to Part 1636—Interpretive Guidance on the Pregnant Workers

Fairness Act” (Interpretive Guidance). As explained in the NPRM, the Interpretive Guidance (a

proposed version of which was included in the NPRM) will become part of 29 CFR part 1636.

The Interpretive Guidance represents the Commission’s interpretation of the issues addressed

within it, and the Commission will be guided by the regulation and the Interpretive Guidance

when enforcing the PWFA.

Consolidated Appropriations Act, 2023, Pub. L. 117-328, Div. II, 136 Stat. 4459, 6084 (2022) (codified at 42

U.S.C. 2000gg to 2000gg–6).

88 FR 54714–94 (proposed Aug. 11, 2023) (to be codified at 29 CFR part 1636).

The vast majority of the comments were form comments that were identical or slightly altered versions of a few

base form comments.

88 FR 54719.

Id.

General Information on Terms Used in the Regulation and Interpretive Guidance

The PWFA at 42 U.S.C. 2000gg(3) uses the term “employee (including an applicant)” in

its definition of “employee.” Thus, throughout the statute, this preamble, the final regulation, and

the Interpretive Guidance, the term “employee” should be understood to include “applicant”

where relevant. Because the PWFA relies on Title VII of the Civil Rights Act of 1964 (Title

VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. 2000e et seq.

for its definition of “employee,” that term also includes “former employee,” where relevant.

The PWFA defines “covered entity” using the definition of “employer” from different

statutes, including Title VII.

Thus “covered entities” under the PWFA include public and

private employers with 15 or more employees, unions, employment agencies, and the Federal

Government.

In this preamble, the final regulation, and the Interpretive Guidance, the

Commission uses the terms “covered entity” and the term “employer” interchangeably.

To track the language of the statute more closely and improve readability, the

Commission made three global changes from the proposed rule and proposed appendix to the

final rule and Interpretive Guidance. First, the Commission removed most instances of the words

“applicant” and “former employee” from the regulation and the Interpretive Guidance; based on

the statute and Title VII, the term “employee” covers “applicant” and “former employee” when

relevant. Second, the Commission replaced the word “worker” with the word “employee”

throughout the regulation and the Interpretive Guidance. Third, the Commission removed

sections of the proposed rule that pertained solely to employees covered by the Congressional

Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

42 U.S.C. 2000gg(2)(A), (B)(i), (B)(iii), (B)(iv). The other statutes are the Congressional Accountability Act of

1995 and 3 U.S.C. 411(c).

The statute at 42 U.S.C. 2000gg(2) provides that the term “covered entity” “has the meaning given the term

‘respondent’” under 42 U.S.C. 2000e(n) and includes employers as defined in 42 U.S.C. 2000e(b), 2000e–16c(a),

and 2000e–16(a). The statute at 42 U.S.C. 2000gg–5(b) provides as a rule of construction that “[t]his chapter is

subject to the applicability to religious employment set forth in section 2000e-1(a) of this title [section 702(a) of the

Civil Rights Act of 1964].”

Accountability Act of 1995 because the Commission does not have authority to regulate those

employees (former §§ 1636.2(c)(2) and 1636.5(b)).

The Interpretive Guidance contains numerous examples to illustrate provisions in the

regulation. The Commission received some comments identifying instances where these

examples, in an effort to be simple and short, oversimplified situations related to pregnancy,

childbirth, or related medical conditions. For example, the Commission used the term “bed rest”

in some examples; that is a colloquialism for several actions that would be better described as

“rest and reduced activity.”

The Commission agrees that in a real situation, there may or may

not be more complexity and that describing a restriction may require different or more facts than

are in an example. However, the purpose of these examples is to illustrate legal points, to suggest

practical actions for covered entities and employees, and to encourage voluntary compliance

with the law. Thus, while the Commission has made some changes to the examples in response

to these comments, it also has retained simple language in many examples to allow for ease of

reading and to keep the focus of the examples on the PWFA’s legal interpretation. The

Commission notes that, depending on the facts in the examples, the same facts could lead to

claims also being brought under other statutes that the Commission enforces, such as Title VII

and the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments

Act of 2008 (ADAAA or Amendments Act), 42 U.S.C. 12101 et seq.

Moreover, the situations

Similarly, several examples discuss restrictions on how much an employee can lift. The examples in the

Interpretive Guidance generally refer to these restrictions as “lifting restrictions” with a specific pound limit. In

some situations, the determination of such restrictions can depend on the frequency of lifting, the height to which the

object is lifted, the body position of the person, and the distance between the person and the object. See, e.g., Leslie

A. MacDonald et al., Clinical Guidelines for Occupational Lifting in Pregnancy: Evidence Summary and

Provisional Recommendations, 209 Am. J. Obstetrics & Gynecology 80–88 (2013),

https://pubmed.ncbi.nlm.nih.gov/23467051/; U.S. Dep’t of Health & Hum. Servs., Ctrs. for Disease Control &

Prevention, Nat’l Inst. for Occupational Safety & Health, Provisional Recommended Weight Limits for Lifting at

Work During Pregnancy (Infographic),

https://www.cdc.gov/niosh/topics/repro/images/Lifting_guidelines_during_pregnancy_-_NIOSH.jpg (last visited

Mar. 18, 2024).

References to the ADA throughout the preamble, the regulation, and the Interpretive Guidance are intended to

apply equally to the Rehabilitation Act of 1973, as all nondiscrimination standards under Title I of the ADA also

apply to Federal agencies under section 501 of the Rehabilitation Act. See 29 U.S.C. 791(f).

in specific examples could implicate other Federal laws, including, but not limited to, the Family

and Medical Leave Act of 1993, as amended (FMLA), 29 U.S.C. 2601 et seq.; the Occupational

Safety and Health Act of 1970, as amended (OSH Act), 29 U.S.C. 651 et seq.; and the Fair Labor

Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq., as amended by the Providing Urgent

Maternal Protections for Nursing Mothers Act (PUMP Act), Pub. L. 117-328, Div. KK, 136 Stat.

4459, 6093 (2022).

Additionally, although some examples state that the described actions

“would violate” the PWFA, additional facts not described in the examples could change that

determination.

Finally, the Commission notes that the examples are illustrative. They do not and are not

intended to cover every limitation or possible accommodation under the PWFA.

1636.1 Purpose

The Commission made several minor changes to the Purpose section of the regulation to

follow the language in the statute more closely. Specifically, the phrase “related to, affected by,

or arising out of pregnancy, childbirth, or related medical conditions” was added after “known

limitations” throughout this paragraph, and the descriptions of the retaliation and coercion

provisions were slightly modified.

To the extent that an accommodation in an example is required under another law, like the OSH Act, the example

should not be read to suggest that such a requirement is not applicable.

In the examples, the preamble, the regulation, and the Interpretive Guidance, the Commission uses the terms

“leave” or “time off” and intends those terms to cover leave however it is identified by the specific employer. As

stated in the proposed rule, the Commission recognizes that different types of employers use different terms for time

away from work, including leave, paid time off (PTO), time off, sick time, vacation, and administrative leave,

among others. 88 FR 54715 n.19. Similarly, in the examples, the preamble, the regulation and the Interpretive

Guidance, the Commission uses the term “light duty.” The Commission recognizes that “light duty” programs, or

other programs providing modified duties, can vary depending on the covered entity. As stated in the proposed rule,

the Commission intends “light duty” to include the types of programs included in Questions 27 and 28 of the

EEOC’s Enforcement Guidance: Workers’ Compensation and the ADA and any other policy, practice, or system that

a covered entity has for accommodating employees, including when one or more essential functions of a position are

temporarily excused. EEOC, Enforcement Guidance: Workers’ Compensation and the ADA (1996),

https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada; 88 FR 54715 n.20.

For example, the phrase “Prohibits a covered entity from retaliating” was replaced with “Prohibits discrimination”

in the discussion of retaliation, and the phrase “Prohibits a covered entity from interfering with any individual’s

rights” was replaced with “Prohibits coercion of individuals in the exercise of their rights” in the discussion of

coercion.

1636.2 Definitions—General

The Commission received numerous comments regarding the proposed general

definitions. For example, many comments encouraged the Commission to clarify that restaurant

workers are covered by the PWFA. Several comments also suggested the Commission clarify

that the requirements for protection under the FMLA (in terms of how long an employee must

work for an employer and the number of hours) do not apply under the PWFA and suggested the

Commission clarify that employees need not work for an employer for any specific period of

time in order to be covered by the PWFA.

The PWFA relies on definitions from Title VII to describe when an employer is covered

and who is protected by the law. Employers are covered by the PWFA if they have 15 or more

employees, regardless of the industry. Thus, restaurant workers who work for restaurants with 15

or more employees are covered. Because the PWFA’s approach to coverage and protection

follows Title VII, rather than the FMLA, employees are covered even if they have not worked

for a specific employer for a specific length of time.

In the general definitions section of the rule, the Commission added “or the employee of

a political subdivision of a State” in § 1636.2(b)(3) and (c)(4) to better describe the employees

covered by the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. 2000e–16c(a).

1636.3 Definitions—Specific to the PWFA

1636.3(a) Known Limitation

The rule reiterates the definition of “known limitation” from 42 U.S.C. 2000gg(4) and

then provides definitions for the operative terms.

1636.3(a)(1) Known

The Commission did not change the definition of “known” from the proposed rule. Under

that definition a limitation is “known” to a covered entity if the employee, or the employee’s

representative, has communicated the limitation to the covered entity.

1636.3(a)(2) Limitation

The proposed rule restated the definition of limitation from the statute and added that the

physical or mental condition may be a modest or minor and/or episodic impediment or problem,

that it included when an employee affected by pregnancy, childbirth, or related medical

conditions had a need or a problem related to maintaining their health or the health of the

pregnancy, and that it included when an employee affected by pregnancy, childbirth, or related

medical conditions sought health care related to pregnancy, childbirth, or a related medical

condition itself.

The Commission received several comments supporting the definition of “limitation” and

suggesting that the word “need” be added to the second sentence (in addition to “impediment” or

“problem”) so that it would read: “Physical or mental condition is an impediment, problem, or

need that may be modest, minor, and/or episodic.” The Commission declines to make this

change because this sentence as it exists (which uses the term “impediment” or “problem”) is

sufficiently broad, and the third sentence of the definition of “limitation” covers when the

employee has a “need or a problem related to maintaining their health or the health of the

pregnancy.”

The Commission received a few comments asserting that this definition was too broad

and that it should be more restrictive. The Commission disagrees. As discussed in the NPRM, the

PWFA was intended to cover all types of limitations, including those that are minor and those

that are needed to maintain the employee’s health or the health of the pregnancy.

Thus, creating

a higher threshold would not be in keeping with this rationale, would be contrary to

congressional intent, and would impede a qualified employee’s ability to stay on the job.

A handful of comments asked for clarification as to whether the language in the NPRM

required employers to provide reasonable accommodations to an employee when an employee’s

partner, spouse, or family member—and not the employee themselves—has a physical or mental

condition related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions. It does not. To respond to these comments, the Commission has included in the final

rule’s definition of “limitation” that the limitation must be of the specific employee in question.

This is essentially the same language that was in the NPRM with regard to related medical

conditions in § 1636.3(b).

The Commission has made one minor change in the language of this provision in the

regulation. To track the language of the statute in 42 U.S.C. 2000gg(4), the Commission has

changed the last sentence of the definition of “limitation” regarding the ADA so that it now

mirrors the language in the statute (“whether or not such condition meets the definition of

disability”).

In the Interpretive Guidance, the Commission has added information in section

1636.3(a)(2) Limitation calling attention to the possible overlap between the PWFA and the

ADA and noting that in these situations the qualified employee may be entitled to an

accommodation under either statute, as the protections of both may apply. The Commission has

added information consistent with the changes in the regulation described above to state that the

limitation must be of the specific employee in question and that the PWFA does not create a

88 FR 54714–16 (discussing the purpose of the PWFA, including that it helps workers with uncomplicated

pregnancies and minor limitations), 54719–20 (explaining that allowing employees to seek health care related to

pregnancy, childbirth, or a related medical condition itself is consistent with the ADA).

88 FR 54767 (providing that related medical conditions are “as applied to the specific employee or applicant in

question”).

right to reasonable accommodation based on an individual’s association with someone else with

a PWFA-covered limitation or provide accommodations for bonding or childcare. To make the

language in the Interpretive Guidance consistent with the regulation, the Commission has

modified language in the Interpretive Guidance regarding accommodations for health care to

clarify that accommodations may be needed to attend health care appointments for a variety of

reasons.

Finally, the Commission has modified language from the proposed appendix regarding

the PWFA and the lack of a “severity” requirement to avoid giving the mistaken impression that

the ADA has such a requirement.

Comments and Response to Comments Regarding the Commission’s Proposed Description of

“Related to, Affected by, or Arising Out of”

Some comments supported the Commission’s reading of the language “related to,

affected by, or arising out of,” stating that the Commission’s reading was textually accurate in

that nothing in the statutory language requires that the pregnancy, childbirth, or related medical

conditions be the sole or original cause of the limitation. Other comments stated that the

language in the NPRM explaining “related to, affected by, or arising out of,” especially when

combined with the definition of “related medical conditions,” could require accommodations for

known limitations caused by any physical or mental condition that has any real, perceived, or

potential connection to—or impact on—an individual’s pregnancy, fertility, or reproductive

system. These comments asked the Commission to alter the NPRM language to counter this

The proposed appendix stated: “The definition also includes when the worker is seeking health care related to the

pregnancy, childbirth, or a related medical condition itself . . . and recognizes that for pregnancy, childbirth, or

related medical conditions the proper course of care can include regular appointments and monitoring by a health

care professional.” 88 FR 54773. The new language in the Interpretive Guidance in section 1636.3(a)(2) Limitation

states: “Similarly, under the PWFA, an employee may require a reasonable accommodation of leave to attend health

care appointments or receive treatment for or recover from their pregnancy, childbirth, or related medical

conditions.” The new language more accurately reflects that accommodations are not limited to “regular

appointments” or “monitoring,” which is consistent with how leave for health care appointments is described in the

regulation and elsewhere in the Interpretive Guidance.

interpretation. Some comments asked for additional clarification regarding the language “related

to, affected by, or arising out of.”

The PWFA uses the language “related to, affected by, or arising out of” to explain the

connection between the physical or mental condition and pregnancy, childbirth, or related

medical conditions.

As such, the statute does not require that pregnancy, childbirth, or related

medical conditions be the sole, the original, or a substantial reason for the physical or mental

condition, and the Commission does not have the authority to change this term.

To help respond to these comments, in the Interpretive Guidance in section 1636.3(a)(2)

under Related to, Affected by, or Arising Out of, the Commission has added that “related to,

affected by, or arising out of” are inclusive terms and that a pregnancy, childbirth, or related

medical condition does not need to be the sole, the original, or a substantial cause of the physical

or mental condition at issue for the physical or mental condition to be “related to, affected by, or

arising out of” pregnancy, childbirth, or related medical conditions. This is in keeping with the

dictionary definition of “related to,” which is generally defined as “connected with” or “about”

something.

It also is consistent with the meaning of “affected by,” as the dictionary definition

of the word “affect” is “to cause,” “to produce,” or “to influence” something.

Finally, it aligns

with the meaning of “arising out of,” because the dictionary definition of “arise” includes “to

begin to occur or exist” or “to originate from a source.”

The Interpretive Guidance in section 1636.3(a)(2) under Related to, Affected by, or

Arising Out of further explains that determining whether a physical or mental condition is

“related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions

42 U.S.C. 2000gg(4).

Relate To, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/related%20to (last visited Mar.

9, 2024).

Affect, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/affect (last visited Mar. 18, 2024).

Arise, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/arising (last visited Mar. 14, 2024).

should typically be straightforward, particularly in cases where an individual is currently

pregnant, is experiencing childbirth, or has just experienced childbirth. Pregnancy and childbirth

cause systemic changes that not only create new physical and mental conditions but also can

exacerbate preexisting conditions and can cause additional pain or risk.

Thus, a connection

between an employee’s physical or mental condition and their pregnancy, childbirth, or related

medical conditions will be readily ascertained when an employee is currently pregnant or is

experiencing or has just experienced childbirth.

The Commission has maintained the list of situations in the Interpretive Guidance in

section 1636.3(a)(2) under Related to, Affected by, or Arising Out of that show the connection

between pregnancy, childbirth, or related medical conditions and the limitation with some minor

changes.

The Interpretive Guidance also maintains the discussion that some conditions (like

lifting restrictions) can occur whether or not an employee is affected by pregnancy, childbirth, or

related medical conditions and that the Commission anticipates that confirming that a physical or

mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related

medical conditions will usually be straightforward and can be accomplished through the

interactive process. The Commission has added information to the Interpretive Guidance

explaining that there may be situations where a physical or mental condition may no longer be

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and

that in those situations, an employee may seek an accommodation under the ADA. The

Commission also has added that there may be situations where the physical or mental condition

See, e.g., Danforth’s Obstetrics & Gynecology 286 (Ronald S. Gibbs et al. eds., 10th ed. 2008) (“Normal

pregnancy entails many physiologic changes . . . .”); Clinical Anesthesia 1138 (Paul G. Barash et al. eds., 6th ed.

2009) (“During pregnancy, there are major alterations in nearly every maternal organ system.”).

For example, in the proposed appendix, many of the examples in this paragraph said that the physical or mental

condition was “related to” pregnancy. This has been changed to “related to, affected by, or arising out of” to match

the language in the statute. The Commission has added that a lifting restriction may be due to lower back pain that

may be exacerbated by physical changes associated with pregnancy to connect the lifting restriction to pregnancy in

that example. The Commission has added in this paragraph that: “A lactating employee who seeks an

accommodation to take breaks to eat has a related medical condition (lactation) and a physical condition related to,

affected by, or arising out of it (increased nutritional needs),” in order to include an example about a “related

medical condition.” The Commission has changed the language in the proposed appendix from “determining

whether” to “confirming whether,” where relevant, in order to match the language used in § 1636.3(l)(2).

exacerbates an existing condition that is a disability under the ADA, and in those situations, an

employee may be entitled to an accommodation under either the ADA or the PWFA.

1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions

The NPRM explained that the phrase “pregnancy, childbirth, or related medical

conditions” appears in Title VII’s definition of “sex,” as amended in 1978 by the PDA.

Because Congress chose to write the PWFA using the same phrase as in Title VII, as amended

by the PDA, and is presumed to have known the meaning given that phrase by the courts and the

Commission for over 40 years, the Commission gave the phrase “pregnancy, childbirth, or

related medical conditions” the same meaning under the PWFA as under Title VII.

When

Congress chooses to “use[] the same language in two statutes having similar purposes, . . . it is

appropriate to presume that Congress intended that text to have the same meaning in both

statutes.”

88 FR 54721.

See, e.g., Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 536 (2015) (“If a word

or phrase has been . . . given a uniform interpretation by inferior courts . . . , a later version of that act perpetuating

the wording is presumed to carry forward that interpretation.”) (omissions in original) (quoting Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012)); Bragdon v. Abbott, 524 U.S. 624,

645 (1998) (“When administrative and judicial interpretations have settled the meaning of an existing statutory

provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its

administrative and judicial interpretations as well.”); Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]here, as here,

Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had

knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”); Hall v.

U.S. Dep’t of Agric., 984 F.3d 825, 840 (9th Cir. 2020) (“Congress is presumed to be aware of an agency’s

interpretation of a statute. We most commonly apply that presumption when an agency’s interpretation of a statute

has been officially published and consistently followed. If Congress thereafter reenacts the same language, we

conclude that it has adopted the agency’s interpretation.”) (internal citations and quotation marks omitted); Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 323 (2012) [hereinafter Scalia & Garner,

Reading Law] (“[W]hen a statute uses the very same terminology as an earlier statute—especially in the very same

field, such as securities law or civil-rights law—it is reasonable to believe that the terminology bears a consistent

meaning.”); H.R. Rep. No. 117-27, pt. 1, at 11–17 (discussing the history of the passage of the PDA; explaining that,

due to court decisions, the PDA did not fulfill its promise to protect pregnant employees; and that the PWFA was

intended to rectify this problem and protect the same employees covered by the PDA).

Smith v. City of Jackson, 544 U.S. 228, 233 (2005); see Northcross v. Bd. of Ed. of the Memphis City Schs., 412

U.S. 427, 428 (1973) (per curiam) (observing that “similarity of language” between statutes is “a strong indication

that the two statutes should be interpreted pari passu”).

The PWFA’s legislative history supports the Commission’s reading of the phrase

“pregnancy, childbirth, or related medical conditions” to have the same meaning as the phrase in

Title VII. The U.S. House of Representatives Report accompanying the PWFA recounts the

legislative steps Congress has taken to protect workers affected by pregnancy, childbirth, or

related medical conditions. In 1964, Congress passed Title VII, which included protection from

discrimination based on sex. In 1972, the EEOC interpreted the prohibition on sex discrimination

to include pregnancy, childbirth, or related medical conditions.

In 1976, the Supreme Court

determined that pregnancy discrimination was not covered by Title VII.

In 1978, responding to

that decision, Congress passed the PDA “to codify the EEOC’s original interpretation of Title

VII.”

Courts’ subsequent interpretations of the disparate treatment standard in the PDA,

however, left “[n]umerous [g]aps” in protections, and the Supreme Court’s 2015 decision in

Young v. United Parcel Service, Inc., 575 U.S. 206 (2015), created a standard that did not

adequately protect the workers that the PDA covered, according to the PWFA House Report.

The House concluded that, “[t]o remedy the shortcomings of the PDA, Congress must step in

and act.”

Congress’ discussion of the PDA and identification of shortcomings in the PDA as a

reason for enacting the PWFA show that in the PWFA, Congress sought to protect the same

H.R. Rep. No. 117-27, pt. 1, at 12 (2021); 29 CFR 1604.10(b) (1972); 37 FR 6835, 6837 (1972) (addressing Title

VII coverage of “[d]isabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery

therefrom”).

Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 135–36 (1976).

H.R. Rep. No. 117-27, pt. 1, at 13; see also H.R. Rep. No. 95-948, at 2 (1978), as reprinted in 1978 U.S.C.C.A.N.

4749, 4750 (providing that the U.S. House of Representatives’ version of the PDA “will amend Title VII to clarify

Congress’ intent to include discrimination based on pregnancy, childbirth or related medical conditions in the

prohibition against sex discrimination in employment” and stating that the EEOC’s 1972 guidelines—which “state

that excluding applicants or employees from employment because of pregnancy or related medical conditions is a

violation of Title VII” and “require employers to treat disabilities caused or contributed to by pregnancy,

miscarriage, abortion, childbirth and recovery therefrom as all other temporary disabilities”—“rightly implemented

the Title VII prohibition of sex discrimination in the 1964 [Civil Rights A]ct”); S. Rep. No. 95-331, at 2 (1977)

(explaining that, in implementing Congress’ intent in amending Title VII in 1972, the EEOC issued guidelines that

“made clear that excluding applicants or employees from employment because of pregnancy or related medical

conditions was a violation of [T]itle VII,” and “these guidelines rightly implemented the Congress’ intent in barring

sex discrimination in the 1964 [Civil Rights A]ct”).

H.R. Rep. No. 117-27, pt. 1, at 14–16.

Id. at 17.

workers who are protected by the PDA. By using Title VII’s longstanding definition of

“pregnancy, childbirth, or related medical conditions” for the PWFA, the Commission is

following both the text of the statute and its legislative history.

Comments Regarding Temporal Proximity to a Current or Recent Pregnancy

Some comments requested that the Commission limit the definition of “pregnancy,

childbirth, or related medical conditions” under the PWFA to situations that met their definition

of close temporal proximity to a current or recent pregnancy. These comments also noted that

many of the conditions listed in the NPRM as conditions that could qualify as “pregnancy,

childbirth, or related medical conditions” also could impact individuals who have never been

pregnant or could first arise years before or after pregnancy. Relatedly, several comments

suggested that only conditions related to a current or recent pregnancy (which the comments

defined as one occurring 6 or fewer months earlier) could be “related medical conditions.”

Response to Comments Regarding Temporal Proximity to a Current or Recent Pregnancy

The Commission declines to adopt the changes suggested by these comments, as they

seek to create a definition of “pregnancy, childbirth, or related medical conditions” that is not

supported by Title VII case law or the Commission’s Enforcement Guidance on Pregnancy

Discrimination and Related Issues.

Further, adopting such a bright-line temporal rule would

improperly exclude many employees, such as employees with postpartum limitations, who may

require pregnancy-related accommodations.

That said, “related medical conditions” must be

EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues, (I)(A) (2015) [hereinafter

Enforcement Guidance on Pregnancy Discrimination], https://www.eeoc.gov/laws/guidance/enforcement-guidance-

pregnancy-discrimination-and-related-issues (providing that the term “pregnancy, childbirth, or related medical

conditions” includes current pregnancy, past pregnancy, potential or intended pregnancy, and related medical

conditions).

See, e.g., Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 736, Optimizing Postpartum Care

(reaff’d 2021), https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-

postpartum-care (discussing the importance of postpartum health care, including treatment for disorders arising

during pregnancy and chronic medical conditions); Susanna Trost et al., U.S. Dep’t of Health & Hum. Servs., Ctrs.

related to the pregnancy or childbirth of the specific employee in question, and whether a

specific condition is related to pregnancy or childbirth is a fact-specific determination that will

be guided by existing Title VII precedent and prior relevant Commission guidance.

Comments Regarding the List of Conditions Included in the Regulation as Examples of

“Pregnancy, Childbirth, or Related Medical Conditions”

Multiple comments supported the Commission’s definition of “pregnancy, childbirth, or

related medical conditions” and supported the inclusion of the list of numerous possible “related

medical conditions” in the regulation. Comments argued that the Commission’s reading of

“related medical conditions” best effectuates the purpose and goals of the PWFA; is consistent

with longstanding law, legislative history, agency interpretation, medical understanding, and

common sense; and appropriately supplements the protections currently afforded under the PDA.

By contrast, several comments stated that the language in the NPRM explaining the term

“related medical conditions” could require accommodations for any physical or mental condition

that has any real, perceived, or potential connection to—or impact on—an individual’s

pregnancy, fertility, or reproductive system. These comments asked the Commission to alter the

language in the proposed rule to counter this interpretation.

Other comments stated that the broad, non-exhaustive list of “related medical conditions”

exceeded the Commission’s delegated authority as intended by Congress and that such a list

would, based on sex, improperly privilege employees with gynecological conditions, or

disadvantage other employees with analogous conditions, and thus potentially illegally

discriminate under Title VII or the Equal Protection Clause.

for Disease Control & Prevention, Pregnancy-Related Deaths: Data from Maternal Mortality Review Committees in

36 U.S. States, 2017–2019 (2022), https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-

mmrc.html (30% of pregnancy-related deaths occurred one- and one-half months to one year postpartum).

Response to Comments Regarding the List of Conditions Included in the Regulation as Examples

of “Pregnancy, Childbirth, or Related Medical Conditions”

Generally, the question of whether a condition constitutes “pregnancy, childbirth, or

related medical conditions” in a particular case will be fact-specific and guided by existing Title

VII precedent and relevant prior Commission guidance. To assist in making that determination,

the Commission made clarifying changes and additions to the language in this section of the

regulation and has added more information in the Interpretive Guidance in section 1636.3(b)

Pregnancy, Childbirth, or Related Medical Conditions.

First, the Commission removed the phrase “relate to, are affected by, or arise out of” with

regard to “related medical conditions” in the proposed § 1636.3(b) in order to track the language

of the statute and reflect more closely language in the Commission’s prior enforcement guidance

that explains the extent of the PDA and the definition of “pregnancy, childbirth, or related

medical conditions.”

This sentence now says “[r]elated medical conditions are medical

conditions relating to the pregnancy or childbirth of the specific employee in question.”

Second, the Commission reorganized the list of conditions in § 1636.3(b) to follow more

closely the organization of the Commission’s Enforcement Guidance on Pregnancy

Discrimination explaining the definition of “pregnancy, childbirth, or related medical

conditions,” so that the two resources are consistent.

Third, the Commission addressed concerns raised in the comments that conditions in the

list of “related medical conditions” would “always” be “related medical conditions” and thus

limitations related to, affected by, or arising out of those conditions would automatically be

entitled to coverage under the PWFA. The Commission responded to these concerns and requests

42 U.S.C. 2000gg(4); Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(4)(a) (“[A]n

employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth.”).

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A).

by changing the language in § 1636.3(b) so that the list is now explained as conditions that “are,

or may be,” “related medical conditions.”

Fourth, the Commission added that the pregnancy or childbirth must be “of the specific

employee in question.” This language was already in the NPRM—in that the NPRM made clear

that related medical conditions must be related to the pregnancy or childbirth of the specific

employee in question—and has been added to the definition of “limitation” as well.

In the Interpretive Guidance in section 1636.3(b) Pregnancy, Childbirth, or Related

Medical Conditions, the Commission has added information regarding the Commission’s

expectation that it will be readily apparent that certain medical conditions (e.g., lactation,

miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational

diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets syndrome)) have a

relation to pregnancy or childbirth; and that, similarly, a connection between a medical condition

and pregnancy or childbirth will often be evident when a new medical condition occurs or an

existing medical condition is exacerbated or poses a new risk during a current pregnancy,

childbirth, or postpartum period.

The Commission disagrees that creating a list of potential “related medical conditions”

that are or may be related to pregnancy or childbirth exceeds the Commission’s authority. The

list includes related medical conditions that courts and the Commission, in its Enforcement

Guidance on Pregnancy Discrimination, have determined can, but are not always required to be,

related medical conditions, as well as a non-exhaustive list of other conditions that, depending on

the situation, can be related to pregnancy or childbirth.

The list clearly states that it consists of

Additionally, for consistency, the Commission replaced “menstrual cycles” with “menstruation” because

menstruation is the term used elsewhere in the NPRM and also replaced “birth control” with “contraception”

because that is the term used in Enforcement Guidance on Pregnancy Discrimination cited throughout the NPRM.

Compare 88 FR 54767 (listing “menstrual cycles” in the list of “related medical conditions”), with 88 FR 54721,

54774 (explaining that the list in the regulation for the definition of “pregnancy, childbirth, or related medical

conditions” includes “menstruation”); Enforcement Guidance on Pregnancy Discrimination, supra note 31, at

(I)(A)(3).

Enforcement Guidance on Pregnancy Discrimination, supra note 31.

examples that “are or may be” related medical conditions in a specific case. In each case, a

determination that a medical condition is related to pregnancy or childbirth is fact-specific and

contingent on whether the medical condition at issue is related to the pregnancy or childbirth of

the specific employee in question. The Commission notes that regardless of whether pregnancy,

childbirth, or related medical conditions are at issue, the provision of 42 U.S.C. 2000gg–5(a)(2)

stating that nothing in the PWFA shall be construed “by regulation or otherwise, to require an

employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment”

applies.

The Commission also disagrees that accommodations under the PWFA will potentially

discriminate based on sex. The PWFA only provides accommodations to qualified employees

with limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions. This is in keeping with courts that have found that laws and other policies that

provide leave for workers affected by pregnancy do not discriminate based on sex.

Additionally, in Young v. United Parcel Service,

the Supreme Court found that an employer

could be required by the PDA to provide an accommodation for pregnant workers even if the

employer’s general policy did not provide for accommodations for workers except in certain

situations. The accommodations provided under the PWFA are similar in purpose and effect to

those that could have been obtained in Young. And, just as the accommodations contemplated by

the Court in Young did not violate Title VII, neither do accommodations under the PWFA.

Moreover, Congress expressly intended that in some cases, the PWFA would require

accommodations for a qualified employee’s limitations related to, affected by, or arising out of

See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 290 (1987) (holding that, without violating Title VII,

the State could require employers to provide up to four months of medical leave to pregnant women where “[t]he

statute is narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth,

or related medical conditions”) (emphasis in original); Johnson v. Univ. of Iowa, 431 F.3d 325, 328 (8th Cir. 2005)

(“If the leave given to biological mothers is granted due to the physical trauma they sustain giving birth, then it is

conferred for a valid reason wholly separate from gender.”).

575 U.S. 206 (2015).

pregnancy, childbirth, or related medical conditions, even if such accommodations are not

available to other employees. In fact, Congress observed that the PDA’s comparator requirement

“is a burdensome and often impossible standard to meet” and thus is “insufficient to ensure that

pregnant workers receive the accommodations they need.”

Comments and Response to Comments Requesting Deletions, Additions, or Other Modifications

to the List of Examples of “Pregnancy, Childbirth, or Related Medical Conditions”

Many comments requested deletions, additions, or other modifications to the list of

examples of “pregnancy, childbirth, or related medical conditions” provided in the proposed

definition at § 1636.3(b). The Commission declines to modify the provided list. As previously

explained, the list of examples of “pregnancy, childbirth, or related medical conditions” is non-

exhaustive and includes conditions that are commonly—but not always—associated with

pregnancy or childbirth. The list neither requires blanket accommodation for every condition

listed nor precludes accommodations for conditions that are not listed. Additionally, because

“pregnancy, childbirth, or related medical conditions” has the same definition as in Title VII, as

amended by the PDA, this phrase’s use in the PWFA necessarily will continue to reflect Title

VII case law regarding that phrase.

Comments and Response to Comments Regarding Coverage of Specific Conditions—

Menstruation

A number of comments argued for or against the inclusion of menstruation in the list of

“related medical conditions.” While the limited number of Federal courts that have addressed the

issue of whether menstruation falls within the Title VII definition of “related medical conditions”

have not always held that it does, read together, the majority of these cases illustrate that, at a

See H.R. Rep. No. 117-27, pt. 1, at 11–12.

minimum, menstruation is covered under Title VII when it has a nexus to a current or prior

pregnancy or childbirth. Accordingly, as with many conditions that can be “related medical

conditions,” this determination will be made on a case-by-case basis.

Comments and Response to Comments Regarding Coverage of Specific Conditions—Lactation

One comment claimed there was a split between courts on the issue of whether lactation

falls within the scope of the PDA, stating that some courts, including the Fourth and Sixth

Circuits, found that it does not, while other courts have found that it does. One case cited by the

comment, however, does not address coverage of lactation as a related medical condition under

Title VII. The case of Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428 (6th

Cir. 2004), involved a

question of whether a store’s ban on public breastfeeding was discriminatory under a State public

accommodation statute where that statute did not include protection on the basis of “pregnancy,

See EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 429–30 (5th Cir. 2013) (observing, in a case about whether

lactation was a “related medical condition,” that “as both menstruation and lactation are aspects of female

physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of ‘pregnancy,

childbirth, or related medical conditions’”); Flores v. Va. Dep’t of Corr., No. 5:20-CV-00087, 2021 WL 668802, at

*4 (W.D. Va. Feb. 22, 2021) (declining to decide whether heavy menstruation due to perimenopause was a “related

medical condition,” but observing that “there is a strong argument that menstruation is a ‘related medical condition’

to pregnancy and childbirth under the PDA”); but see Jirak v. Fed. Express Corp., 805 F. Supp. 193, 195 (S.D.N.Y.

1992) (stating that menstrual cramps alone were not a medical condition related to pregnancy or childbirth);

Coleman v. Bobby Dodd Inst., Inc., No. 4:17-CV-00029, 2017 WL 2486080, at *2 (M.D. Ga. June 8, 2017) (stating

that the employee’s excessive menstruation was “related to pre-menopause, not pregnancy or childbirth”).

However, these and other cases suggest that, even if menstruation (or another condition) is not found to be

“pregnancy, childbirth, or related medical conditions” in a particular case, discrimination based on that condition

could nevertheless violate Title VII’s prohibition on sex discrimination. See, e.g., Harper v. Thiokol Chem. Corp.,

619 F.2d 489, 492 (5th Cir. 1980) (concluding that a policy requiring individuals returning from pregnancy leave to

have a normal menstrual cycle violated Title VII because it denied “persons of like qualifications equal employment

opportunities because of their sex,” as “company rules which single out certain subclasses of women for disparate

treatment constitute unlawful sex discrimination”); Flores, 2021 WL 668802, at *4 (allowing a Title VII claim to

proceed “regardless of applying an expanded definition of ‘because of sex’ or ‘on the basis of sex’ under the PDA”

where the plaintiff was fired for suspicion of contraband due to her use of tampons while menstruating); see also

Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S.

187, 198–99 (1991) (providing that a policy excluding women with childbearing capacity from certain jobs was

discrimination based on gender under Title VII; this conclusion was “bolstered” by the PDA, which prohibits

discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions”); Phillips v.

Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam) (opining that an employer who refused to take

applications from women with preschool-age children but hired men with preschool-age children and other women

would violate Title VII, absent a defense).

childbirth, or related medical conditions.”

Another case cited by the comment, Barrash v.

Bowen, 846 F.2d 927 (4th Cir. 1988) (per curiam), is similarly inapposite. In Barrash, the Fourth

Circuit held that a Federal Government employee who challenged her termination of

employment on grounds of unauthorized absence as violative of her constitutional and

contractual rights was not entitled to 6 months of leave in order to breastfeed her baby. That

court’s statement, that “[u]nder the [PDA] . . ., pregnancy and related conditions must be treated

as illnesses only when incapacitating,”

was subsequently recognized by the same court as

“dicta without any citation of authority.”

By contrast, EEOC v. Houston Funding II, Ltd., held

that lactation is a related medical condition of pregnancy for purposes of the PDA because it is

the “physiological process of secreting milk from mammary glands and is directly caused by

hormonal changes associated with pregnancy and childbirth” and is “a physiological result of

being pregnant and bearing a child.”

Hicks v. City of Tuscaloosa agrees with Houston Funding

that lactation is a related medical condition and therefore covered under the PDA.

Thus,

Derungs and Barrash do not foreclose a finding that lactation can be a “related medical

condition” under Title VII and do not undercut the Commission’s conclusion that lactation can

be a related medical condition under the PWFA.

In its analysis, Derungs also discussed Title VII coverage for breastfeeding under a comparator analysis and found

that breastfeeding would not be covered because of an absence of comparators (i.e., men who could breastfeed).

Derungs, 374 F.3d at 438-39. Independent of the soundness of that analysis, the case did not address whether

lactation was or could be a “related medical condition” to pregnancy and noted in its description of the Ohio statute

regarding employment that parallels Title VII that “[t]he Legislature made a conscious choice to extend the

definition of discrimination to include pregnancy even though there cannot be a class of similarly situated males.”

Id. at 436.

Barrash, 846 F.2d at 931.

Notter v. North Hand Protection, 89 F.3d 829, at *5 (4th Cir. 1996) (per curiam) (table) (explaining that “[t]he

text of the [PDA] contains no requirement that ‘related medical conditions’ be ‘incapacitating’”).

717 F.3d at 428.

870 F.3d 1253, 1259 (11th Cir. 2017).

Comments and Response to Comments Regarding Coverage of Specific Conditions—Infertility

and Fertility Treatments

Some comments agreed with the Commission’s inclusion of infertility and fertility

treatments in the list of covered conditions in the regulation. By contrast, other comments stated

that the Title VII case law on infertility is inconsistent and thus infertility and fertility treatments

should not be included in the list of potentially covered conditions in the regulation. The

Commission concludes that, as with other conditions, and consistent with case law and its prior

policy, whether infertility and fertility treatments are covered by the PWFA will be based on the

particular circumstances of the situation, thus potentially allowing for reasonable

accommodations for treatment for infertility when an employee with the capacity to become

pregnant is trying to get pregnant.

In Johnson Controls, the Supreme Court struck down an employer policy that

discriminated between workers based on childbearing capacity and held that the PDA prohibits

discrimination based on potential pregnancy.

In accordance with Johnson Controls,

discrimination based on the potential to be pregnant, not only current pregnancy, is covered by

Title VII and the PDA. Because Title VII, as amended by the PDA, can cover potential

pregnancy, several courts have found that it protects against discrimination for those undergoing

in vitro fertilization (IVF) or infertility treatments related to becoming pregnant because these

actions are related to the capacity to become pregnant.

By contrast, notably in the insurance

context where the challenged restriction excluded all types of infertility treatments from

499 U.S. at 204–06; see also Kocak v. Cmty. Health Partners of Ohio, 400 F.3d 466, 470 (6th Cir. 2005)

(reasoning that the plaintiff “cannot be refused employment on the basis of her potential pregnancy”).

Hall v. Nalco Co., 534 F.3d 644, 649 (7th Cir. 2008) (finding an employer’s practice of terminating employees

who took leave for IVF treatment violated the PDA because only women undergo IVF); Erickson v. Bd. of

Governors of State Colls. & Univs., 911 F. Supp. 316, 320 (N.D. Ill. 1995) (finding that a plaintiff who underwent

infertility treatment, “although infertile, may have been viewed by her employer as potentially pregnant,” and

distinguishing between “infertility [that] does not relate to [the] capacity to become pregnant” and that which does

relate to the capacity to become pregnant); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1397, 1403–04 (N.D.

Ill. 1994) (finding that infertility or its treatment were conditions that fell under the umbrella of pregnancy

(including potential pregnancy), childbirth, or related medical conditions).

coverage, regardless of the insured employee’s capacity to become pregnant, courts have found

such policies did not violate the PDA.

Those cases do not stand for the proposition that fertility

treatments are never covered by the statutory phrase “pregnancy, childbirth, or related medical

conditions,” but instead hold that the particular claims in those cases fail based on the lack of

differential treatment based on sex. The Commission’s Enforcement Guidance on Pregnancy

Discrimination summarizes the law in this regard:

Employment decisions related to infertility treatments implicate Title VII under limited

circumstances. Because surgical impregnation is intrinsically tied to a woman’s

childbearing capacity, an inference of unlawful sex discrimination may be raised if, for

example, an employee is penalized for taking time off from work to undergo such a

procedure. In contrast, with respect to the exclusion of infertility from employer-provided

health insurance, courts have generally held that exclusions of all infertility coverage for

all employees is gender neutral and does not violate Title VII. Title VII may be

implicated by exclusions of particular treatments that apply only to one gender.

Thus, depending upon the facts of the case, including whether the infertility treatments

are sought by an employee with the capacity to become pregnant for the purpose of becoming

pregnant, accommodations for an employee due to physical or mental conditions related to,

affected by, or arising out of infertility or fertility treatments may be provided under the PWFA,

absent undue hardship.

Comments and Response to Comments Regarding Coverage of Specific Conditions—

Contraception

Saks v. Franklin Covey, Inc., 316 F.3d 337, 346 (2d Cir. 2003) (finding that generally, “[i]nfertility is a medical

condition that afflicts men and women with equal frequency,” but leaving open the question of whether an

individual “would be able to state a claim under the PDA or Title VII for adverse employment action taken against

her because she has taken numerous sick days in order to undergo surgical implantation procedures”); Krauel v.

Iowa Methodist Med. Ctr., 95 F.3d 674, 679–680 (8th Cir. 1996) (finding the benefits policy at issue did not violate

Title VII, reasoning that “the policy of denying insurance benefits for treatment of fertility problems applies to both

female and male workers and thus is gender-neutral”), abrogated on other grounds by Bragdon v. Abbott, 524 U.S.

624 (1998). Notably, because of 42 U.S.C. 2000gg–5(a)(2), nothing in the PWFA can require an employer-

sponsored health plan to pay for or cover any particular item, procedure, or treatment. Thus, PWFA accommodation

claims will not involve coverage by health care plans.

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(3)(c) (footnotes omitted).

Some comments agreed with the Commission’s inclusion of contraception in the

regulation. By contrast, some comments stated that the Commission had not properly interpreted

Federal case law related to the coverage of contraception and that the Eighth Circuit’s holding in

In re Union Pacific Railroad Employment Practices Litigation

forecloses accommodations

related to contraception under all circumstances.

The Commission disagrees that reasonable accommodations regarding contraception for

an employee who has the capacity to become pregnant are foreclosed in all cases by In re Union

Pacific. As stated above, the Supreme Court has held that Title VII “prohibit[s] an employer

from discriminating against a woman because of her capacity to become pregnant.”

Consistent

with this holding, the Eighth Circuit and other courts, like the Commission, have long recognized

that the protections of Title VII extend to employees based on the employees’ potential or intent

to become pregnant.

As stated in the Enforcement Guidance on Pregnancy Discrimination, interpreting In re

Union Pacific as holding that contraception is never related to pregnancy for purposes of the

PDA because it is used prior to pregnancy would be inconsistent with Johnson Controls and

many other cases.

479 F.3d 936, 939, 942 (8th Cir. 2007) (concluding that Union Pacific’s insurance policy—which excluded “all

types of contraception, whether prescription, non-prescription or surgical and whether for men or women”—did not

discriminate against women and therefore did not violate the PDA and distinguishing Johnson Controls on the

ground that, unlike “potential pregnancy,” “contraception is not a gender-specific term”).

Johnson Controls, 499 U.S. at 206.

See Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1154, 1160 (8th Cir. 2003) (upholding a judgment and

award for a plaintiff claiming pregnancy discrimination where the plaintiff provided evidence that her supervisor’s

discriminatory behavior was based on the supervisor’s belief that she was, or was intending to become, pregnant a

second time); see also Kocak, 400 F.3d at 470 (reasoning that the plaintiff “cannot be refused employment on the

basis of her potential pregnancy”); Batchelor v. Merck & Co., 651 F. Supp. 2d 818, 830–31 (N.D. Ind. 2008)

(holding that the plaintiff was protected under the PDA where her supervisor allegedly discriminated against her

because of her stated intention to start a family); Cleese v. Hewlett-Packard Co., 911 F. Supp. 1312, 1317–18 (D.

Or. 1995) (concluding that the plaintiff, who claimed that the defendant employer discriminated against her because

it knew she planned to become pregnant, fell within the PDA’s protections and noting that the court agreed with

“Pacourek that the purpose of the PDA is best served by extending its coverage to women who are trying to become

pregnant”).

In the Commission’s view, In re Union Pacific is best understood as a case about a

specific health insurance policy that excluded coverage of both prescription and non-prescription

contraceptive methods that were used to prevent pregnancy, regardless of the sex of the

employee who used them.

The gender-neutral nature of the insurance exclusion was central to

In re Union Pacific’s holding that the insurance policy did not constitute disparate treatment

under Title VII. This is similar to the reasoning of courts that have found that denial of insurance

coverage for infertility generally, which can affect employees regardless of their capacity to

become pregnant, does not violate the PDA, while still leaving open the possibility that the PDA

could be violated if an employee was penalized for using leave for IVF treatments.

As with

infertility, the failure of particular Title VII claims related to contraception based on the lack of

gender-based differential treatment does not mean that contraception can never be covered by the

statutory phrase “pregnancy, childbirth, or related medical conditions.”

As stated in the Commission Decision on Coverage of Contraception, the PDA can cover

discrimination regarding contraception when, unlike the facts in In re Union Pacific, the

challenged restriction regarding contraception coverage is limited to those who have the capacity

See also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678–79 & n.17, 683–84 (1983)

(noting that the legislative history of the PDA demonstrates Congress’ intent that it would be facially discriminatory

for an employer to discriminate in insurance coverage between persons who face a risk of pregnancy and those who

do not, and concluding that the employer unlawfully gave married male employees a benefit package for their

dependents that was less inclusive than the dependency coverage provided to married female employees). In

Newport News, the Court found that the benefits that a male employee and his dependents could receive were less

than what a female employee and her dependents could receive, and thus the plan violated the PDA. This rationale

further explains the decisions in In re Union Pacific and Krauel. In those cases, both of which involved insurance

benefits, the benefits received by employees and their dependents were the same; thus, there was not a PDA

violation. See Saks, 316 F.3d at 344–345 (describing Newport News as “focused on whether male and female

employees received equal coverage under their health benefits package” and finding that Newport News would not

allow exclusions based on pregnancy); id. at 345 n.2 (describing the decision in Saks as looking at “whether the

exclusion of surgical impregnation procedures result in [a] less comprehensive benefits package for female

employees”).

See Saks, 316 F.3d at 346 & n.4 (concluding that the insurance coverage plan at issue, which did not cover

treatments for infertility regardless of capacity to become pregnant, would not violate the PDA, but stating that

“[w]e expressly decline to consider whether an infertile female employee would be able to state a claim under the

PDA or Title VII for adverse employment action taken against her because she has taken numerous sick days in

order to undergo surgical impregnation procedures”).

to become pregnant.

Thus, in the Commission Decision on Coverage of Contraception, the

exclusion of prescription contraception violated the PDA’s prohibition on sex discrimination

because prescription contraception could only be used by those who have the capacity to become

pregnant.

Other courts similarly have concluded that an insurance policy’s exclusion of

contraception coverage that only can be used by those with the capacity to become pregnant

violates the PDA.

Finally, Congress chose to write the PWFA using the same phrase as in Title VII, as

amended by the PDA, and directed the Commission to issue regulations. Congress is presumed

to have known the meaning previously given to “pregnancy, childbirth, or related medical

conditions” by courts and the Commission, as well as the established principles of statutory

construction.

This includes the Commission’s interpretation in its 2000 Commission Decision

on Coverage of Contraception and in its 2015 Enforcement Guidance on Pregnancy

Discrimination. Therefore, it is reasonable to conclude that Congress expected the Commission

EEOC, Commission Decision on Coverage of Contraception (Dec. 14, 2000), https://www.eeoc.gov/commission-

decision-coverage-contraception.

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(3)(d) nn.37–38.

See Cooley v. DaimlerChrysler Corp., 281 F. Supp. 2d 979, 984–85 (E.D. Mo. 2003) (determining that, although

the defendant employer’s policy was facially neutral, denying a prescription medication that allows an employee to

control their potential to become pregnant is “necessarily a sex-based exclusion” that violates Title VII, as amended

by the PDA, because only people who have the capacity to become pregnant use prescription contraceptives, and the

exclusion of prescription contraceptives may treat medication needed for a sex-specific condition less favorably than

medication necessary for other medical conditions); Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271–72

(W.D. Wash. 2001) (determining that the selective exclusion of prescription contraceptives from an employer’s

generally comprehensive prescription drug plan violated the PDA because only people who have the capacity to

become pregnant use prescription contraceptives). Additionally, the Commission notes that those who can and

cannot get pregnant face different risks in not having access to contraception in that the individual who may actually

become pregnant bears the exclusive risk of experiencing pregnancy-related complications, including a variety of

life-threatening conditions. U.S. Dep’t of Health & Hum. Servs., Ctrs. for Disease Control & Prevention, Urgent

Maternal Warning Signs (Nov. 17, 2022), https://www.cdc.gov/hearher/maternal-warning-signs/index.html

(explaining urgent warning signs and symptoms “during pregnancy and in the year after delivery” that “could

indicate a life-threating situation”); U.S. Dep’t of Health & Hum. Servs., Ctrs. for Disease Control & Prevention,

Maternal Mortality Rates in the United States, 2021 (March 2023), https://www.cdc.gov/nchs/data/hestat/maternal-

mortality/2021/maternal-mortality-rates-2021.htm (discussing the high rates of maternal mortality); Am. Coll. of

Obstetricians & Gynecologists and Physicians for Reproductive Health, Abortion Can Be Medically Necessary

(Joint Statement) (Sept. 25, 2019), https://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-

necessary (“Pregnancy imposes significant physiological changes on a person’s body. These changes can exacerbate

underlying or preexisting conditions, like renal or cardiac disease, and can severely compromise health or even

cause death.”).

See supra note 24.

to interpret the language in the PWFA consistently with its interpretation of the same language in

the PDA.

Thus, under the PWFA, depending on the facts, a limitation related to contraception that

affects the individual employee’s potential pregnancy can be the basis for a request for an

accommodation.

Whether a particular set of facts will support the necessary nexus between

contraception and an individual employee’s potential pregnancy is a determination that will be

made on a case-by-case basis.

Comments and Response to Comments Regarding Coverage of Specific Conditions—Other

Conditions

Some comments requested that specific conditions be added to the list in the regulation.

However, inclusion on the list does not make it more or less likely that a specific condition in a

specific situation will be considered pregnancy, childbirth or a related medical condition—it is a

fact-specific determination. Some comments requested that the Commission opine on whether

specific conditions (including ones on which neither the courts nor the Commission have yet

opined) would be covered under “related medical conditions” under the PWFA. Especially in the

situations where the courts and the Commission have not yet spoken, the Commission believes

that this is something best left to development on a case-by-case basis within specific factual

contexts.

Inclusion of Abortion in the Definition of “Pregnancy, Childbirth, or Related Medical

Conditions”

Preliminary Considerations

See H.R. Rep. No. 117-27, pt. 1, at 27 (“Throughout the bill’s text, the PWFA ensures that workers have access to

reasonable accommodations for conditions connected with a pregnancy, not just a pregnancy itself.”).

The Commission received approximately 54,000 comments (most of which were form or

slightly altered form comments from individuals) urging the Commission to exclude abortion

from the definition of “pregnancy, childbirth, or related medical conditions.”

The Commission

also received approximately 40,000 comments (most of which were form or slightly altered form

comments from individuals or sign-on letters) supporting the inclusion of abortion in the

definition of “pregnancy, childbirth, or related medical conditions.”

Many of the comments urging the Commission to exclude abortion from the definition of

“pregnancy, childbirth, or related medical conditions” expressed the view that abortion is the

destruction of a human life, that it is objectionable for moral or religious reasons, and that it is

not health care.

The Commission recognizes these are sincere, deeply held convictions and are

often part of an individual’s religious beliefs. The Commission also received many comments

that expressed deeply held beliefs, including religious beliefs, that abortion is a necessary part of

health care and that an employer’s religious beliefs should not dictate an employee’s ability to

receive a reasonable accommodation under the PWFA.

In the final regulation, the Commission includes abortion in its definition of “pregnancy,

childbirth, or related medical conditions,” as proposed in the NPRM and consistent with the

Commission’s and courts’ longstanding interpretation of the same phrase in Title VII. The

Commission responds to comments regarding this issue below. Preliminarily, the Commission

provides the following context to clarify the limits of the PWFA.

The number of comments does not require the EEOC to adopt a specific view. U.S. Cellular Corp. v. FCC, 254

F.3d 78, 87 (D.C. Cir. 2001) (“[T]he Commission has no obligation to take the approach advocated by the largest

number of commenters . . . ; indeed, the Commission may adopt a course endorsed by no commenter. The

Commission’s only responsibilities are to respond to comments, 5 U.S.C. 553, and to choose a reasonable approach

backed up by record evidence.”) (internal citations omitted).

Some comments also expressed religious and conscience objections to other conditions included in the definition

of “pregnancy, childbirth, or related medical conditions,” such as infertility treatments and contraception. The

Commission has addressed these other issues, supra, in the preamble in section 1636.3(b) Pregnancy, Childbirth, or

Related Medical Conditions. Responses to comments that object to these procedures for religious reasons are

addressed infra in the preamble in section 1636.7(b) Rule of Construction and in the preamble in section 1636.7

under Religious Freedom Restoration Act.

First, the PWFA is a workplace anti-discrimination law. It does not regulate the provision

of abortion services or affect whether and under what circumstances an abortion should be

permitted. The PWFA does not require any employee to have—or not to have—an abortion, does

not require taxpayers to pay for any abortions, and does not compel health care providers to

provide any abortions. The PWFA also cannot be used to require an employer-sponsored health

plan to pay for or cover any particular item, procedure, or treatment, including an abortion.

The

PWFA does not require reasonable accommodations that would cause an employer to pay any

travel-related expenses for an employee to obtain an abortion.

Given these limitations, the type

of accommodation that most likely will be sought under the PWFA regarding an abortion is time

off to attend a medical appointment or for recovery. The PWFA, like the ADA, does not require

that leave as an accommodation be paid leave, so leave will be unpaid unless the employer’s

policies provide otherwise.

Second, the PWFA provides a mechanism for a qualified employee with a known

limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions to receive workplace accommodations. The term “abortion” is included in the

regulation’s definition of “pregnancy, childbirth, or related medical conditions” for the limited

purpose of determining whether an employee qualifies for a workplace accommodation under the

PWFA. As shown in the public comments, beliefs about when an abortion may be morally or

religiously permissible, even within religious traditions, are not monolithic.

Third, despite the large number of comments that the Commission received, the

Commission’s historical experience, in more than four decades of enforcing Title VII, is that

very few employers have actually faced a situation where an employee is expressly requesting

42 U.S.C. 2000gg–5(a)(2) provides that nothing in the PWFA shall be construed “by regulation or otherwise, to

require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment.”

The PWFA does not prohibit an employer from taking these actions, either.

See infra in the preamble in section 1636.3(h) under Particular Matters Regarding Leave as a Reasonable

Accommodation.

leave for an abortion and the employer declines to grant the leave on religious or moral grounds.

Since 1978, Title VII has required that employers who provide sick leave provide that leave in a

non-discriminatory manner to women affected by pregnancy, childbirth, or related medical

conditions. This includes, and has included since 1978, allowing employees affected by

pregnancy, childbirth, or related medical conditions to use employer-provided leave in order to

have time off to have an abortion.

Yet the public comments the Commission received did not

cite any Title VII cases that ruled against the employer where a request for leave for an abortion

was at issue, and the comments did not provide evidence that the Title VII requirement has

caused problems for employers in the past. Nonetheless, under the framework of this final rule,

accommodations related to abortion—like all accommodations—remain subject to applicable

exceptions and defenses, including both those based on religion and undue hardship.

With this background, the Commission responds to the comments it received.

Interpretation of “Pregnancy, Childbirth, or Related Medical Conditions” as Consistent With Its

Meaning in Title VII

See 42 U.S.C. 2000e(k); 124 Cong. Rec. S18,978 (daily ed. Oct. 13, 1978) (statement of Sen. Harrison A.

Williams, Jr.) (“The House-passed bill included a provision which would have excluded health insurance benefits,

sick leave benefits, and disability leave benefits for abortions altogether, except where the life of the mother would

be endangered if the fetus were carried to term, or in case of complications. The legislation which passed this body

included no such provision. After lengthy debate, and discussion of this difficult issue, the conferees have adopted a

compromise which requires the provision of sick leave and disability benefits in connection with an abortion on the

same basis as for any other illness or disabling condition.”); see also H.R. Rep. No. 95-1786, at 3–4 (Conf. Rep.)

(explaining the differences between the Senate bill, the House amendment, and the substitute agreed to in

conference).

Since 1979, the Commission’s guidelines have provided that “[a]ll fringe benefits other than health insurance, such

as sick leave, which are provided for other medical conditions, must be provided for abortions.” 29 CFR part 1604,

appendix, Question 35 (1979). This has been the EEOC’s consistent interpretation for over 40 years.

In 2015, the EEOC reaffirmed that “pregnancy, childbirth, or related medical conditions” includes abortions.

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(4)(c); see, e.g., Doe v. C.A.R.S. Prot.

Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (“Clearly, the plain language of the statute, together with the legislative

history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman

employee because she has exercised her right to have an abortion. We now hold that the term ‘related medical

conditions’ includes an abortion.”); DeJesus v. Fla. Cent. Credit Union, No. 8:17-CV-2502, 2018 WL 4931817, at

*1 (M.D. Fla. Oct. 11, 2018) (denying the employer’s motion to dismiss in a Title VII case where an employee used

approved leave to have an abortion and was fired shortly thereafter when her supervisor stated that the abortion was

not an appropriate excuse for her absence).

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” as Reflected in Statutory Text

Comments regarding the Commission’s decision to include “abortion” in the definition of

“pregnancy, childbirth, or related medical conditions” made several arguments related to the

statutory text of the PWFA and Title VII.

Many comments in favor of the Commission’s inclusion of abortion in the proposed

definition of “pregnancy, childbirth, or related medical conditions” asserted that its inclusion

accurately reflects the statutory text of the PWFA; that the phrase “pregnancy, childbirth, or

related medical conditions” is taken directly from Title VII and uses identical language; that the

identical language in the PWFA and Title VII must be interpreted consistently; that Congress’

drafting the PWFA against the backdrop of Title VII strongly suggests that its use of Title VII’s

language would require the language to have the same meaning in the PWFA, absent a clear

indication to the contrary; and that in enacting the PDA, Congress expressly stated that the

statute applied to employees who obtained abortions, confirming its statutory intent to prohibit

discrimination against employees for obtaining abortion care, and that Congress’ use of the term

in the PWFA is consistent with that underlying interpretation.

Other comments favoring the Commission’s inclusion of abortion in the definition of

“pregnancy, childbirth, or related medical conditions” stated that its inclusion is important for

consistency and clarity, noting that both employers and employees have relied on the

Commission’s longstanding inclusion of this interpretation in guidance to understand what

constitutes “pregnancy, childbirth, or related medical conditions”; that applying the same

definition under the PWFA provides important consistency when litigation is brought under Title

VII and the PWFA simultaneously; and that the PWFA’s drafters intentionally drew specific

terms from Title VII and the ADA to ensure employees and employers would have a clear

understanding of the meaning of those terms.

By contrast, many comments opposing the Commission’s proposed definition stated that

abortion could not be included in the definition of “pregnancy, childbirth, or related medical

conditions” because the PWFA’s text does not mention abortion; that Congress’ intent to include

abortion in the definition of “pregnancy, childbirth, or related medical conditions” cannot be

inferred simply because the PWFA uses the same language as Title VII; that the PWFA does not

direct the Commission to construct a broad definition of “related medical conditions”; and that

the inclusion of “pregnant workers” in the statute’s title should exclude employees who end their

pregnancies via an abortion. Comments also stated that, under canons of statutory interpretation,

the general term “or related medical conditions” is best read to cover only those concepts akin to

the specific terms it follows—and that abortion is not related to “pregnancy” or “childbirth.”

Comments opposed to the Commission’s inclusion of abortion in the proposed definition

of “pregnancy, childbirth, or related medical conditions” also asserted that under the text of the

PWFA, employers should be required only to accommodate employees who are currently

pregnant or who give birth. For instance, comments asserting that under the PWFA a “related

medical condition” must be related to a current or recent pregnancy or childbirth analogized the

PWFA’s accommodation provision to the accommodation provisions under Title VII and the

ADA, which apply when an employee has a sincerely held religious belief or practice, or a

disability, respectively.

Comments also asserted that abortion is the opposite of pregnancy and childbirth. For

instance, comments stated that an abortion is unlike pregnancy because it is a procedure that ends

a pregnancy and the possibility of childbirth from that pregnancy; and that pregnancy is not a

medical condition to be treated with an abortion.

Comments opposed to the Commission’s inclusion of abortion in the definition of

“pregnancy, childbirth, or related medical conditions” also maintained that “related medical

conditions” should be construed narrowly under the PWFA. For instance, some comments stated

that Congress’ inclusion of the term “childbirth” meant that abortion could not be included in the

regulation; that a broad definition of “related medical conditions” would render the term

“childbirth” superfluous; and that the PWFA’s definition should only refer to involuntary,

detrimental impacts of pregnancy, childbirth, or related medical conditions. Comments stated

that, in including contraception and abortion, the Commission’s definition goes beyond medical

conditions to cover medical interventions; these comments argued, for example, that the act of

obtaining reproductive health care—including contraception and abortion—is not, by definition,

a medical, physical, or mental condition, and thus it cannot be a PWFA limitation.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” as Reflected in Statutory Text

The Commission agrees with comments expressing support for inclusion of abortion in

the proposed definition of “pregnancy, childbirth, or related medical conditions” for which a

qualified employee could receive an accommodation, absent undue hardship.

In interpreting a statute, an agency must start with its text. The PWFA does not define the

phrase “pregnancy, childbirth, or related medical conditions.” For nearly 45 years, however,

consistent with the plain language of the statute, congressional intent, and Federal courts’

interpretation of the statutory text, the Commission has interpreted “pregnancy, childbirth, or

related medical conditions” in Title VII to include the decision to have—or not to have—an

abortion and to prohibit discrimination in employment practices because an employee had or did

not have an abortion.

Based on well-established rules of statutory interpretation, the

Commission properly interprets “pregnancy, childbirth, or related medical conditions” to have

the same meaning in the PWFA as it does under Title VII.

As the Supreme Court has stated,

See 29 CFR part 1604, appendix, Questions 34 & 35 (1979); see also Enforcement Guidance on Pregnancy

Discrimination, supra note 31, at (I)(A)(4)(c).

These rules include: (1) the Prior-Construction Canon, which states that when judicial interpretations have settled

the meaning of an existing statutory provision, repetition of the same language in a new statute is presumed to

incorporate that interpretation; Tex. Dep’t of Hous. & Cmty. Affs., 576 U.S. at 536–37 (“If a word or phrase has been

. . . given a uniform interpretation by inferior courts . . . , a later version of that act perpetuating the wording is

“When administrative and judicial interpretations have settled the meaning of an existing

statutory provision, repetition of the same language in a new statute indicates, as a general

matter, the intent to incorporate its administrative and judicial interpretations as well.”

The

Commission concludes that it would not be consistent with Congress’ intent, as expressed in its

choice of this statutory language for the PWFA, to construct a broader or narrower definition of

“pregnancy, childbirth, or related medical conditions” than under Title VII. Rather, following the

canons of statutory interpretation, the Commission is using the definition that already exists for

this identical phrase under Title VII. Indeed, it is likely that defining this phrase differently than

it has been defined in a parallel statute would exceed the Commission’s congressionally

delegated authority.

As set out in the NPRM, Congress previously used the phrase “pregnancy, childbirth, or

related medical conditions” when, in enacting the PDA, it amended Title VII to explicitly state

that Title VII’s prohibition against sex discrimination includes a prohibition against

discrimination on the basis of “pregnancy, childbirth, or related medical conditions.”

The

legislative history of the PDA expressly stated that the PDA’s protections applied to situations

presumed to carry forward that interpretation.”) (omissions in original) (quoting Scalia & Garner, Reading Law, at

322); Lorillard, 434 U.S. at 581 (“[W]here, as here, Congress adopts a new law incorporating sections of a prior

law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law,

at least insofar as it affects the new statute.”); Hall v. U.S. Dep’t of Agric., 984 F.3d at 840 (“Congress is presumed

to be aware of an agency’s interpretation of a statute. We most commonly apply that presumption when an agency’s

interpretation of a statute has been officially published and consistently followed. If Congress thereafter reenacts the

same language, we conclude that it has adopted the agency’s interpretation.”) (internal citations and quotation marks

omitted); Scalia & Garner, Reading Law at 323 (“[W]hen a statute uses the very same terminology as an earlier

statute—especially in the very same field, such as securities law or civil-rights law—it is reasonable to believe that

the terminology bears a consistent meaning.”); (2) the Related Statutes Canon (In Pari Materia), which states that

courts do not interpret statutes in isolation, but rather in the context of the body of law of which they are a part,

including later-enacted statutes, so statutes addressing the same subject matter generally should be read as if they

were one law; see, e.g., Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006); (“[U]nder the in pari materia canon,

statutes addressing the same subject matter generally should be read as if they were one law . . . .”) (internal citations

and quotation marks omitted); and (3) the Presumption of Legislative Acquiescence Canon, which states that

statutes adopted after certain prior judicial or administrative interpretations may acquiesce in those interpretations;

see, e.g., Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616, 629 n.7 (1987) (“Congress has not amended

the statute to reject [the Court’s] construction [of Title VII], nor have any such amendments even been proposed,

and we therefore may assume that our interpretation was correct.”).

Bragdon, 524 U.S. at 645.

42 U.S.C. 2000e(k).

involving abortions, and indeed, the statutory text enacted by Congress explicitly excluded

certain abortion procedures from health insurance requirements, since the statute would

otherwise have been read to require their coverage, while still requiring coverage in certain

limited circumstances.

Congress’ express purpose in enacting the PWFA was to supplement Title VII’s

protections for qualified employees affected by pregnancy, childbirth, or related medical

conditions; in other words, the same employees protected by Title VII, as amended by the

PDA.

To that end, Congress’ approach in both laws was to ensure that employers are not

required to pay for abortions for their employees but that employees are not discriminated

against in the workplace for having them. Further, the Commission agrees with the comments

that using the same definition that the Commission and courts have used for the same phrase in

Title VII provides important clarity and consistency for employers and employees.

Using the same definition also provides clarity and consistency for courts and harmonizes

the two statutory schemes. Title VII and the PWFA cover the same employers and employees.

Having two definitions of the same term would cause confusion for courts and potentially require

them to reach conflicting decisions. Moreover, as cases under the PWFA may, depending on the

circumstances, also be brought under Title VII, courts could be asked to decide cases involving

both Title VII’s prohibition of discrimination based on “pregnancy, childbirth, or related medical

conditions” and the PWFA’s reasonable accommodation provision.

Even if the Commission were authorized to ignore the courts’ and its own prior

longstanding, consistent interpretation of “pregnancy, childbirth, or related medical conditions,”

the Commission would reach the same conclusion that the 1978 Congress did—that the phrase

“pregnancy, childbirth, or related medical conditions” includes choosing to have or not to have

See id. (“This subsection shall not require an employer to pay for health insurance benefits for abortion, except

where the life of the mother would be endangered if the fetus were carried to term, or except where medical

complications have arisen from an abortion . . . .”); H.R. Rep. No. 95-1786, at 4 (1978) (Conf. Rep.).

See supra, preamble section 1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions.

an abortion, based on the plain meaning of the phrase “pregnancy, childbirth, or related medical

conditions.” By definition, individuals who are choosing whether or not to have an abortion are

pregnant. And the condition of being pregnant does not depend on the ultimate outcome of the

pregnancy, as highlighted by Congress extending coverage to “childbirth” separate from

“pregnancy.” Thus, the term “pregnancy” naturally includes all of those limitations arising out of

the pregnancy itself, regardless of whether any particular pregnancy ends in miscarriage, live

birth, an abortion, or any other potential outcome. If an employee is denied an accommodation

because they are seeking an abortion, or not seeking an abortion, that employee has necessarily

been denied an accommodation on account of their current pregnancy. Accordingly, the decision

to have or not to have an abortion falls squarely within the ordinary meaning of the phrase

“pregnancy, childbirth, or related medical conditions.”

Given how courts and the Commission have defined “pregnancy, childbirth, or related

medical conditions” in Title VII, the Commission disagrees that the PWFA and its implementing

regulation only would apply to qualified employees who are currently pregnant or who recently

gave birth, thus implicitly excluding abortion. First, such an interpretation would exclude

qualified employees who have had miscarriages or are otherwise no longer pregnant, which

appears to be inconsistent with the text of, and does not appear to be the intent of, either the

PWFA or the PDA.

As stated above, by definition, qualified employees who seek an abortion

are either currently or recently pregnant. Finally, the Commission sees no evidence that the

inclusion of “childbirth” evinces congressional intent to construct a narrower definition of

“related medical conditions” under the PWFA than under Title VII, as both statutes contain this

identical language. As stated above, both the legislative history and the explicit exclusion of

certain abortion procedures from health insurance requirements under the PDA evince Congress’

See, e.g., H.R. Rep. No. 117-27, pt. 1, at 20 (discussing the need for the PWFA, citing to a case in which an

employee’s miscarriage was not covered by the ADA, and noting that “[t]here are many cases where courts have

found that even severe complications related to pregnancy do not constitute disabilities triggering [ADA]

protection”).

intent to include abortion in the definition of “pregnancy, childbirth, or related medical

conditions” under Title VII.

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” as Reflected in the Statutory Intent and Structure of the PWFA

Many comments regarding the Commission’s proposed inclusion of abortion in the

definition of “pregnancy, childbirth, or related medical conditions” made arguments related to

the statutory intent and structure of the PWFA.

Comments in favor of the inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions,” including from Members of Congress, asserted that the

Commission’s inclusion of abortion in the definition is consistent with the PWFA’s statutory

intent and structure; that Congress’ express purpose in enacting the PWFA was to supplement

Title VII’s protections; that Congress adopted the PWFA to remedy gaps in existing legal

protections, including in Title VII, and it understood how “pregnancy, childbirth, or related

medical conditions” is interpreted by the courts; that Congress understood that the PWFA could

include possible accommodations related to an abortion, as evidenced by the statements of

legislators who opposed the PWFA, showing that they understood it could require

accommodations related to an abortion; that Congress recognized the PWFA as an opportunity

for Congress to finally fulfill a promise of Title VII; and that Congress intentionally included

“related medical conditions” in the PWFA to encompass conditions beyond simply pregnancy

and childbirth.

Many comments in favor of the inclusion of abortion expressed that including abortion

furthers Congress’ policy goal of protecting pregnant workers from harm; that it accurately

reflects the range of needs and conditions that workers may experience that require reasonable

workplace accommodations in relation to pregnancy; that abortion care is a safe, common, and

essential component of reproductive health care; that decisions regarding abortion are private

medical matters and should be made by patients in consultation with their clinicians and without

undue interference by outside parties; and that providing accommodations for abortion would

mean that employees would not have to risk their health, lives, or livelihoods to access care.

Many such comments focused on specific positive health and social outcomes that employees

would enjoy if they had access to accommodations for abortion, such as the ability to maintain

personal bodily autonomy; to choose when to have or not have children; to receive necessary

health care in the event of intimate partner violence, rape, incest, fetal anomalies, and exposure

to teratogenic medications; and to receive necessary health care in the event of pregnancy

complications that may be so severe that abortion is the only measure that will preserve a

pregnant employee’s health or save their life—including placental abruption, bleeding from

placenta previa, preeclampsia or eclampsia, and cardiac or renal conditions.

Comments opposed to the inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions” asserted that including abortion does not reflect

Congress’ generally expressed intent for the PWFA. For instance, comments stated that the

PWFA’s intent only is to ensure that pregnant and postpartum women can receive reasonable

accommodations to safely work; that the PWFA’s intent only is to support mothers during

pregnancy and childbirth and only to protect and benefit the health of mothers and their fetuses,

as well as to provide accommodations for miscarriage, stillbirth, treatment of an ectopic

pregnancy, or emergency treatment intended to preserve the life of the pregnant employee, but

not an abortion; that the Commission’s interpretation turns the PWFA into a general reproductive

health care statute, defying Congress’ intent; that the PWFA was intended by its supporters to be

like the ADA, which the comments construed not to require accommodations for abortion; that

Congress did not intend to make forays into controversial social policy by enacting the PWFA;

that including abortion ignores that Congress cited statistics about working mothers in support of

the PWFA and talked about the health of the mother and baby; and that Congress does not hide

“elephants in mouseholes,” and abortion is an elephant in the mousehole of “pregnancy,

childbirth, or related medical conditions.”

Some comments opposed to the inclusion of abortion also asserted that the definition

does not reflect congressional intent as expressed by the PWFA’s structure. These comments

noted that Congress chose not to amend Title VII by incorporating the PWFA. Such comments

inferred from this choice that Congress implicitly declined to import Title VII’s definition of

“pregnancy, childbirth, or related medical conditions” and its abortion-related requirements into

the PWFA. These comments stated that the PWFA does not specifically require the same

definition of “pregnancy, childbirth, or related medical conditions” as Title VII, as it does with

other terms from the ADA and Title VII, and if Congress wanted the Commission to provide

examples of “related medical conditions” it would have expressly said so.

Finally, some comments opposed to the proposed definition stated that Title VII’s

insurance exclusion provision, which addresses abortion and has been used to suggest that Title

VII otherwise covers abortion, is different from the PWFA’s similar exclusion provision.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” as Reflected in the Statutory Intent and Structure of

the PWFA

As stated above, the Commission’s inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions” is supported by the plain text of the statute and by

statutory intent and structure and is in keeping with the well-established rules of statutory

construction.

Congress chose to write the PWFA using an identical phrase, “pregnancy,

childbirth, or related medical conditions,” from Title VII and did not define the phrase in the

PWFA. Nor did it place any limitations or rules of construction on the definition of the phrase in

See supra note 67.

the PWFA. Accordingly, the Commission gives the phrase the same meaning under the PWFA

as it has under Title VII for nearly 45 years. The Commission agrees that the PWFA’s focus is

accommodation, but, as the text of the PWFA and the ADA state and the Supreme Court has

reiterated, accommodations are a form of nondiscrimination.

Thus, the fact that the PWFA

provides accommodations does not make it a different type of statute from Title VII.

Additionally, although Congress specifically incorporated certain definitions into the PWFA

from the ADA and Title VII, such as those for “reasonable accommodation,” “undue hardship,”

“employer,” and “employee,” in those situations, the terms appear in more than one other statute

enforced by the Commission, and some of their definitions vary across statutes.

incorporating certain terms, the Commission understands Congress’ intent as specifying which

definition it chose to adopt in the PWFA to avoid confusion. By contrast, there is only one other

statute that the Commission enforces that uses the phrase “pregnancy, childbirth, or related

medical conditions,” and that is Title VII, as amended by the PDA. Therefore, Congress’ intent

to use the Title VII definition in the PWFA is clear.

Further supporting the Commission’s interpretation of the phrase “pregnancy, childbirth,

or related medical conditions” is the fact that the PWFA passed as part of the Consolidated

Appropriations Act, 2023 (CAA), in which Congress included several provisions explicitly

42 U.S.C. 2000gg–1 (titled “Nondiscrimination with regard to reasonable accommodations related to

pregnancy”); 42 U.S.C. 12112(b)(5)(A) (“[T]he term ‘discriminate against a qualified individual on the basis of

disability’ includes . . . not making reasonable accommodations . . . .”); see also 29 CFR part 1630, appendix,

1630.9 (“The obligation to make reasonable accommodation is a form of non-discrimination.”); US Airways, Inc. v.

Barnett, 535 U.S. 391, 396 (2002) (“[T]he ADA says that ‘discrimination’ includes an employer’s ‘not making

reasonable accommodations to the known physical or mental limitations of an otherwise qualified . . . employee,

unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of

[its] business.’”) (citing 42 U.S.C. 12112(b)(5)(A)) (emphasis in original) (omission in original).

42 U.S.C. 2000e(b) (defining “employer” under Title VII), (f) (defining “employee” under Title VII), (j) (defining

“religion” with regard to an employer’s obligation to “reasonably accommodate” an employee’s religious

observance or practice absent “undue hardship” under Title VII); 42 U.S.C. 12111(4) (defining “employee” under

the ADA), (5) (defining “employer” under the ADA), (9) (defining “reasonable accommodation” under the ADA),

(10) (defining “undue hardship” under the ADA).

limiting the use of Federal funds for abortion.

Where Congress includes particular language in

one section of a law but omits it in another, it is generally presumed that Congress acts

intentionally and purposely in including or excluding certain language.

Given that Congress

explicitly included exclusions regarding abortion in certain sections of the CAA but omitted any

such exclusion in the PWFA, the Commission concludes that the omission was an intentional act.

The Commission’s interpretation also is consistent with the legislative history of the

PDA, the statute that is the source of the phrase, “pregnancy, childbirth, or related medical

conditions.” The Congressional Conference Report accompanying the PDA provides: “Because

[the PDA] applies to all situations in which women are ‘affected by pregnancy, childbirth, and

related medical conditions,’ its basic language covers decisions by women who chose to

terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman

simply because she has exercised her right to have an abortion.”

By including the same key

phrase in the PWFA and not articulating a different meaning than in the PDA, Congress is

presumed to know and intend that the same definition will be applied.

And given the

longstanding and public interpretation of this phrase, by both the Commission and the courts, the

Commission disagrees that adopting the same interpretation as Title VII amounts to Congress

“hiding” an elephant in a mousehole.

Furthermore, the second sentence of the PDA states that employers do not have to pay for

health insurance benefits for abortion, except where necessary to preserve the life of the mother

See, e.g., sec. 613, Pub. L. 117-328, 136 Stat. 4459, 4699 (2022) (providing that: “No funds appropriated by this

Act shall be available to pay for an abortion, or the administrative expenses in connection with any health plan under

the Federal employees health benefits program which provides any benefits or coverage for abortions.”).

Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S. 16, 23

(1983)). Of note, in the debate surrounding the PWFA before its passage in the Senate, the Senators discussed

abortion. See 168 Cong. Rec. S7,049–50 (daily ed. Dec. 8, 2022); 168 Cong. Rec. S10,071, S10,081 (daily ed. Dec.

22, 2022). The House Report also discusses abortion. See H.R. Rep. No. 117-27, pt. 1, at 60. Thus, both chambers

were seemingly aware of this issue, but the law does not include the type of abortion exclusion found in other parts

of the CAA.

See H.R. Rep. No. 95-1786, at 4 (1978) (Conf. Rep.).

See supra note 67.

or where medical complications have arisen from an abortion.

The inclusion of this limited

language regarding abortion coverage, coupled with clear statements in the legislative history,

supports the conclusion that Congress intended for Title VII, as amended by the PDA, to protect

employees against discrimination based on abortion and that Congress provided an exception,

largely motivated by religious freedom concerns, for employers to opt out of providing health

benefits to cover the procedure itself.

Of note, the PWFA has a similar structure—it requires

employers not to discriminate against protected qualified employees by failing to provide them

reasonable accommodations, but it does not require, or permit the Commission to require, “an

employer-sponsored health plan to pay for or cover any particular item, procedure, or

treatment.”

As a matter of the PWFA’s plain text, therefore, the Commission determines that the

decision to have, or not to have, an abortion is encompassed within the phrase “pregnancy,

childbirth, or related medical conditions.” Because this conclusion follows from the statutory

text, the Commission does not believe that other concerns raised by commenters are relevant.

The Commission’s determination is not based on the potential health or social outcomes related

to abortion; rather, the Commission’s determination is based on the statutory text. Moreover, it

bears emphasizing that this rulemaking does not require abortions or affect the availability of

abortion; it simply ensures that employees who choose to have (or not to have) an abortion are

able to continue participating in the workforce, by seeking reasonable accommodations from

covered employers, as needed and absent undue hardship.

See 42 U.S.C. 2000e(k).

See H.R. Rep. No. 95-948, at 7 (1978), as reprinted in 1978 U.S.C.C.A.N. 4749, 4755 (“Many members of the

committee were troubled . . . by any implication that an employer would have to pay for abortions not necessary to

preserve the life of the mother through medical benefits or other fringe benefit programs, even if that employer—a

church organization for example—harbored religious or moral objections to abortion; such a requirement, it was felt,

could compromise the religious freedom of such employers. The committee, therefore, amended the language of the

bill to deal with the problem, by making clear that such employers will not be required to pay for abortions except

where the life of the mother would be endangered if the fetus was carried to term.” (emphasis in original)).

42 U.S.C. 2000gg–5(a)(2).

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and Statements from Members of Congress and the White House

About the PWFA

Some comments pointed to statements made by Members of Congress to either support

or dispute the idea that the definition of “pregnancy, childbirth, or related medical conditions” in

the PWFA includes abortion. Comments also noted the absence of certain statements from

Members of Congress and the White House.

First, comments that supported the inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions” pointed to statements by opponents of the bill, whose

opposition was based on the lawmakers’ views that abortion would be covered.

Some

comments also pointed to an amendment proposed by Senator James Lankford that the Senate

rejected, which stated that “[t]his division shall not be construed to require a religious entity

described in Section 702(a) of the Civil Rights Act of 1964 to make an accommodation that

would violate the entity’s religion”

as evidence that Senators knew that abortion would be

covered.

Comments that did not support the inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions” pointed to statements made during floor debate by two

of the co-sponsors of the PWFA in the Senate, Senator Robert P. Casey, Jr.

and Senator

William Cassidy.

These comments also mentioned that, in a statement on the House floor,

Representative Jerrold Nadler, lead sponsor of the PWFA, explained that the PWFA should be

See, e.g., 168 Cong. Rec. S7049 (daily ed. Dec. 8, 2022) (statement of Sen. Thomas (Thom) Tillis); 167 Cong.

Rec. H2325, H2330, H2332 (daily ed. May 14, 2021) (statements of Rep. Julia Letlow, Rep. Robert George (Bob)

Good, and Rep. Mary Miller).

168 Cong. Rec. S10,069–70 (daily ed. Dec. 22, 2022).

168 Cong. Rec. S7,050 (daily ed. Dec. 8, 2022).

See, e.g., id. at S7,049–50.

interpreted consistently with Title VII, stating: “The Pregnant Workers Fairness Act aligns with

Title VII in providing protections and reasonable accommodations for ‘pregnancy, childbirth,

and related medical conditions,’ like lactation.”

Second, comments that disagreed with the Commission’s proposed inclusion of abortion

in the definition of “pregnancy, childbirth, or related medical conditions” pointed to statements

made by Senator Steven Daines and Senator Cassidy after the Senate voted to add the PWFA to

the CAA, both of which stated that accommodations related to abortion should not be covered. In

addition, comments that disagreed with the Commission’s position pointed to the lack of

statements by supporters of the bill in Congress and the White House, and by advocacy groups,

regarding its coverage of abortion. Comments stated that the PWFA would not have enjoyed

bipartisan support, if the intent of the law were to include abortion, and including abortion as a

related medical condition in the rule would make the political parties less likely to work together.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and Statements from Members of Congress and the

White House About the PWFA

The PWFA’s text, structure, and intent support the Commission’s proposed definition.

Even if the Commission’s interpretation were inconsistent with the cited statements of individual

Members of Congress during the PWFA’s passage, statements made by individual Members of

Congress during floor debate do not justify a departure from an interpretation that Congress,

courts, and the Commission have consistently adhered to since the PDA was enacted more than

four decades ago. Again, the Commission’s interpretation must start with the text of the statute.

Relying on the text, rather than the individual statements of Members of Congress, follows the

Supreme Court’s requirements when interpreting a statute; as the Court has noted, “[p]assing a

168 Cong. Rec. H10,527–28 (daily ed. Dec. 23, 2022).

law often requires compromise, where even the most firm public demands bend to competing

interests. What Congress ultimately agrees on is the text that it enacts, not the preferences

expressed by certain legislators.”

In addition, the Commission does not agree that the PWFA’s legislative history counsels

for a different interpretation of “pregnancy, childbirth, or related medical conditions” than in the

PDA. For example, according to the House PWFA Committee Report, Members knew that

abortion would be covered as a pregnancy-related condition for which some employers would

need to provide accommodation.

Additionally, the Commission’s definition is consistent with

the full floor statement of Senator Casey and the comment that the Senator submitted during the

public comment period.

Consistent with the statutory text and Congress’ intent, the PWFA

does not impose a categorical mandate on an employer to provide leave for an abortion. Leave,

like any accommodation, is subject to applicable exceptions and defenses, including both those

based on religion and on undue hardship. Nothing in the PWFA requires an employer to pay for

an abortion or provide health care benefits for abortion in violation of State law.

Finally, numerous legislators submitted comments during the public comment period that

supported or opposed the inclusion of abortion in the definition of “pregnancy, childbirth, or

related medical conditions.” As these were statements made by Members of Congress after the

NLRB v. SW Gen., Inc., 580 U.S. 288, 306 (2017) (citations omitted); see also March v. United States, 506 F.2d

1306, 1314 n.31 (D.C. Cir. 1974) (citing NLRB v. Plasterers’ Loc. Union, 404 U.S. 116, 129–30 n.24 (1971)

(providing that, where congressional debates “reflect individual interpretations that are contradictory and

ambiguous, they carry no probative weight”)).

H.R. Rep. No. 117-27, pt. 1, at 60 (stating under minority views that “if an employee working for a religious

organization requests time off to have an abortion procedure, H.R. 1065 could require the organization to comply

with this request as a reasonable accommodation of known limitations related to pregnancy, childbirth, or related

medical conditions”).

168 Cong. Rec. S7,050 (daily ed. Dec. 8, 2022); Comment EEOC-2023-0004-98384, Sen. Robert P. Casey, Jr.

(Oct. 10, 2023) (stating that in drafting the PWFA, legislators intentionally used terms from other laws, including

“pregnancy, childbirth, or related medical conditions,” and supporting the definition in the proposed rule).

See 42 U.S.C. 2000gg–5(a)(2); 88 FR 54745 (stating that “nothing in the PWFA requires or forbids an employer

to pay for health insurance benefits for an abortion”). Covered entities, however, may separately be subject to the

PDA’s provisions regarding abortion coverage in certain circumstances. See 42 U.S.C. 2000e(k).

passage of a bill, the Commission gave them due consideration as statements of the views of

each particular Member who signed them.

In response to the comments regarding the political process, the Commission cannot

speculate on counterfactual scenarios such as what might have triggered a filibuster of the PWFA

in Congress, nor what would diminish bipartisan support for future legislation. And the

Commission cannot reinterpret the definition of “pregnancy, childbirth, or related medical

conditions” based on the purported absence of certain statements by Members of Congress,

advocates, or the executive branch during the bill’s passage.

As explained above, the Commission must rely on the plain text of the statute. Given the

meaning of the words that Congress chose to use in the PWFA, and the Commission’s and

courts’ long history of interpreting those identical words to include abortion, the Commission

will interpret those words the same way in the PWFA.

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and Administrative and Judicial Interpretation

Many comments in favor of the Commission’s inclusion of abortion in the definition of

“pregnancy, childbirth, or related medical conditions” asserted that the Commission’s inclusion

of abortion in the definition accurately reflects longstanding judicial and administrative

interpretations under Title VII. Comments stated that the Commission’s interpretation is correct

Cf. Nat’l Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 639 n.34 (1967) (observing that statements inserted into

the record after passage of a bill are regarded as “represent[ing] only the personal views of the[] legislators”

involved). Senator Patricia Murray, joined by 24 Senators, endorsed the Commission’s interpretation regarding the

definition of “pregnancy, childbirth, or related medical conditions,” Comment EEOC-2023-0004-98257, Sen.

Patricia (Patty) Murray and 24 U.S. Senators (Oct. 10, 2023); as did Representative Jerrold Nadler, joined by 82

House Representatives, Comment EEOC-2023-0004-98470, Rep. Jerrold (Jerry) Nadler and 82 Members of

Congress (Oct. 10, 2023); and Representative Robert Scott, Comment EEOC-2023-0004-98339, Rep. Robert C.

(Bobby) Scott, Ranking Member of the House Committee on Education and the Workforce (Oct. 10, 2023). By

contrast, Senator James Lankford’s comment, which was joined by 19 Senators, including Senator Bill Cassidy, and

41 House Representatives, disagreed with the Commission’s interpretation. Comment EEOC-2023-0004-98436,

Sen. James Lankford, 19 U.S. Senators, and 41 Members of Congress (Oct. 10, 2023). Similarly, Senator Michael

Braun’s comment disagreed with the Commission’s interpretation. Comment EEOC-2023-0004-98486, Sen.

Michael (Mike) Braun (Oct. 10, 2023).

and consistent with decades of authority under Title VII, including legislative history, Federal

case law, and Commission guidance; that existing case law supports the Commission’s

interpretation that Title VII protects employees from discrimination for contemplating or

obtaining an abortion or refusing to submit to an employer’s demand that they obtain an

abortion; and that the Commission’s Enforcement Guidance on Pregnancy Discrimination

reaffirmed that choosing whether to have or not to have an abortion is covered under the PDA.

Some comments opposed to the Commission’s proposed inclusion of abortion in the

definition of “pregnancy, childbirth, or related medical conditions” asserted that the

Commission’s definition is contrary to judicial and administrative interpretations under Title VII.

Some comments disputed the Commission’s statement that existing case law under Title VII

supports the Commission’s definition, claiming that the decisions do not apply to the PWFA and

are distinguishable; that there is not a widespread judicial consensus about the meaning of

“related medical conditions”; and that the Commission should not rely on lower court decisions.

Some comments took issue with the Commission’s reliance on its 2015 Enforcement

Guidance on Pregnancy Discrimination to interpret the phrase “pregnancy, childbirth, or related

medical conditions” under the PWFA, as the Enforcement Guidance on Pregnancy

Discrimination does not receive binding judicial deference; only addresses pregnancy

discrimination, not accommodation; and was issued many years after the PDA’s enactment.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and Administrative and Judicial Interpretation

The Commission disagrees with the comments that dispute the case law it cited and its

reliance on its Enforcement Guidance on Pregnancy Discrimination. The Title VII decisions the

Commission cited involve situations where employers discriminated against employees because

they contemplated having, or chose to have, an abortion. These decisions include Doe v. C.A.R.S.

Protection Plus, a Third Circuit decision relating to leave holding that an employer may not

discriminate against an employee because she had an abortion.

As stated above, refusal to

provide reasonable accommodation is a form of discrimination.

Finally, the Commission’s

reliance on its Enforcement Guidance on Pregnancy Discrimination is appropriate because it

represents and demonstrates the consistent position of the Commission. It is immaterial that the

guidance was voted on and approved by the Commission years after the passage of the PDA,

especially given that the year after the PDA was enacted, the Commission issued its Questions &

Answers about the PDA stating that abortion is covered under the PDA and prohibiting

discrimination in employment practices because an employee had or did not have an abortion.

Thus, the Enforcement Guidance on Pregnancy Discrimination reconfirmed and still reflects the

Commission’s decades-long position.

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and Other Laws

Some comments pointed to other laws to dispute the Commission’s definition of

“pregnancy, childbirth, or related medical conditions.” The comments pointed to the provisions

in annual appropriations legislation, for example, the Hyde and Weldon Amendments, limiting

the use of Federal funds for abortion except in certain circumstances. The comments also stated

that Congress has never passed a law explicitly promoting the right to abortion. Similar

527 F.3d at 363–64 (citing, inter alia, Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996)); see also

DeJesus, 2018 WL 4931817, at *1 (denying the employer’s motion to dismiss in a Title VII case where an employee

used approved leave to have an abortion and was fired shortly thereafter when her supervisor stated that the medical

procedure was not an appropriate excuse for her absence).

See supra note 74.

29 CFR part 1604, appendix, Question 34 (“Q. Can an employer discharge, refuse to hire or otherwise

discriminate against a woman because she has had an abortion? / A. No. An employer cannot discriminate in its

employment practices against a woman who has had an abortion.”), Question 35 (“Q. Is an employer required to

provide fringe benefits for abortions if fringe benefits are provided for other medical conditions? / A. All fringe

benefits other than health insurance, such as sick leave, which are provided for other medical conditions, must be

provided for abortions. Health insurance, however, need be provided for abortions only where the life of the woman

would be endangered if the fetus were carried to term or where medical complications arise from an abortion.”); see

also supra note 28 (noting that in the PWFA Congress was seeking to protect the same employees who are protected

by the PDA).

comments noted that some States such as West Virginia and Louisiana have adopted their own

versions of the PWFA, and no court appears to have interpreted State or local PWFAs to include

abortion. Comments also stated that the Commission should clarify whether its regulation

supersedes abortion funding restrictions in the Hyde Amendment and similar amendments, and

how the Federal Government will ensure that Federal agencies do not pay for abortion

accommodations and ensure that the same rules that apply to the ADA regarding taxpayer

funding for abortion apply to the PWFA.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and Other Laws

In interpreting the identical language from Title VII in the context of the PWFA, the

Commission cannot infer congressional intent in a manner contrary to the plain text

interpretation, particularly not based on what Congress could have said, but chose not to say.

There is no evidence to suggest that the other Federal statutes cited by the comments should be

considered by the Commission as interpreting the PWFA, nor is there any persuasive reason to

give controlling weight to these statutes (instead of interpreting the PWFA consistently with

Title VII, as Congress intended). Rather, the fact that Congress chose to provide express

exclusions related to abortion in the cited statutes, including in the CAA, but did not choose to

do so in the PWFA, suggests that if Congress wanted to exclude abortion from the definition of

“pregnancy, childbirth, or related medical conditions” in the PWFA, it would have done so

expressly.

Moreover, the PWFA, as interpreted by the Commission in this rule, does not in any way

promote abortion; it simply provides for the possibility of an accommodation related to a

qualified employee seeking an abortion, absent undue hardship, and there is only a narrow

context in which this protection would likely apply—when an employee is seeking leave—given

the prohibitions of 42 U.S.C. 2000gg–5(a)(2).

The PWFA also provides for accommodations

for employees who choose not to have an abortion, absent undue hardship.

Further, the interpretation of State laws is not as persuasive as the interpretation of Title

VII when Congress used the same words in both Federal statutes. Comments addressing State

laws did not address whether cases regarding abortion arose under these PWFA-analogous laws.

As stated above, despite the large number of comments on this issue, the Commission’s practical

experience under Title VII shows that litigation regarding this issue is not common. Finally, as

stated previously, the Commission’s rule does not require any employer to pay for an abortion.

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and the Dobbs Decision

Some comments stated that the Supreme Court’s decision in Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215 (2022), which concluded that there is no Federal constitutional right

to abortion and overruled Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), affects the Commission’s rulemaking.

First, some comments said that, because the PWFA was enacted soon after the Court

issued its Dobbs decision, Congress should have stated more clearly in the PWFA any protection

for an employee seeking an accommodation related to an abortion, if that was its intent. Second,

some comments asserted that, because of the Dobbs decision, abortion is a State issue, not a

Federal issue, that there is no Federal right to abortion, that including abortion accommodations

in the PWFA would circumvent Dobbs, and that under Dobbs, abortion is not health care.

Comments also stated that the Title VII case law cited by the Commission involved substantial

reliance on the constitutional right to abortion now undone by Dobbs.

42 U.S.C. 2000gg–5(a)(2) provides that “[n]othing in this chapter shall be construed . . . by regulation or

otherwise, to require an employer-sponsored health plan to pay for or cover any particular item, procedure, or

treatment or to affect any right or remedy available under any other Federal, State, or local law with respect to any

such payment or coverage requirement.”

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and the Dobbs Decision

Given the language that Congress used in the PWFA and the use and interpretation of

that same language in Title VII, the Dobbs decision does not suggest a different definition of the

phrase “pregnancy, childbirth, or related medical conditions.” First, Congress is not required to

speak directly to a specific issue when it legislates. “In some cases, Congress intends silence to

rule out a particular statutory application, while in others Congress’ silence signifies merely an

expectation that nothing more need be said in order to effectuate the relevant legislative

objective.”

Congress’ choice to use the same phrase in the PWFA as in Title VII, coupled with

Congress’ decision to enact limitations with respect to abortion in other portions of the CAA but

not in the PWFA, supports the Commission’s interpretation that “pregnancy, childbirth, or

related medical conditions” has the same meaning in the PWFA that it does in Title VII, and it

includes abortion. Thus, the conclusion the Commission draws from Congress’ lack of an

explicit mention of abortion in the PWFA is that Congress did not express its intent for the

phrase to have any different meaning than it has under Title VII.

As stated at the beginning of this discussion, the Commission’s rule does not regulate

abortion or abortion procedures, nor does it require an employer to pay for, promote, or endorse

abortion. Additionally, although Dobbs held that the U.S. Constitution’s Due Process Clause

does not provide a right to abortion, that interpretation of the Constitution does not address

Congress’ authority to regulate potential employment discrimination by providing for reasonable

accommodations for pregnancy, childbirth, or related medical conditions absent undue hardship,

as Congress has done in the PWFA. Dobbs did not involve, and the Court did not discuss,

employment protections under Title VII, and Dobbs did not purport to interpret the meaning of

Burns v. United States, 501 U.S. 129, 136 (1991), abrogated on other grounds as recognized by Dillon v. United

States, 560 U.S. 817 (2010).

the phrase “pregnancy, childbirth, or related medical conditions” in Title VII. Ultimately, Dobbs

concerned a matter of constitutional interpretation and not one of statutory interpretation, and the

cases cited by the Commission in support of the inclusion of abortion in the definition of

“pregnancy, childbirth, or related medical conditions” may still be relied on. Indeed, Congress

enacted the PWFA after the Dobbs decision and chose to retain the phrase “pregnancy,

childbirth, or related medical conditions” that it had used in Title VII without any modification

or instruction. Thus, even if Dobbs could be construed as an invitation for Congress to reevaluate

that language from Title VII, Congress did not do so.

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and Policy Arguments Regarding Abortion

Many comments supported the inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions” for various policy reasons. As discussed at length

above, such reasons included, for example, stating that it would help employees access essential

health care and have autonomy about their reproductive decisions.

By contrast, other comments stated that, as a policy matter, the Commission should not

include abortion in the definition of “pregnancy, childbirth, or related medical conditions.” First,

some comments speculated that including abortion in the definition will result in employers

encouraging their pregnant workers to have abortions. Some of these comments suggested that

employers might even require pregnant workers to take leave to have an abortion instead of

another available accommodation. Second, some comments stated that there should be no

accommodations for abortion because, according to the comments, abortion causes mental health

issues for women.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and Policy Arguments Regarding Abortion

As explained above, the Commission must rely on the plain text of the statute. Given the

words that Congress chose to use in the PWFA, and the Commission’s and courts’ long history

of interpreting those identical words to include abortion, the Commission will interpret those

words the same way in the PWFA. The Commission disagrees with commenters who argued that

excluding abortion from the definition serves the policy goals expressed by Congress in the

PWFA. On the contrary, as discussed above, the Commission concludes that including abortion

in the definition best serves the policy goals expressed by Congress in the PWFA in that it will

allow qualified employees with known limitations related to pregnancy, childbirth, or related

medical conditions to obtain accommodations to address their needs, absent undue hardship.

While the comments make policy arguments opposed to the inclusion of abortion in the

definition of “pregnancy, childbirth, or related medical conditions,” these policy objections are

not a reason for the Commission to change its interpretation and deviate from the text of the

statute and established rules of statutory construction. Additionally, the Commission notes that

some of the claims in the comments that argued against abortion for policy reasons have been

disputed by health care professionals.

With regard to concerns that employers will force their employees to have abortions,

Title VII prohibits covered entities from taking adverse employment actions against an employee

based on their decisions to have, or not to have, an abortion.

Consistent with this interpretation,

the Commission’s definition of “pregnancy, childbirth, or related medical conditions” includes

For example, the contention that abortion causes mental health issues for women is refuted by major mental health

organizations. Am. Psych. Ass’n, Abortion (2024), https://www.apa.org/topics/abortion; see also Healthline,

Understanding the Relationship Between Abortion and Mental Health (July 6, 2023),

https://www.healthline.com/health/abortion-and-mental-health; M. Antonia Biggs et al., Women’s Mental Health

and Well-Being 5 Years After Receiving or Being Denied an Abortion: A Prospective, Longitudinal Cohort Study,

74 JAMA Psychiatry 169 (Feb. 2017), https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2592320.

See, e.g., EEOC v. Ryan’s Pointe Houston, LLC, No. 19-20656, 2022 WL 4494148, at *7 (5th Cir. Sept. 27,

2022); Velez v. Novartis Pharms. Corp., 244 F.R.D. 243, 267 (S.D.N.Y. 2007) (including a declaration by a female

employee that she was encouraged by a manager to get an abortion as anecdotal evidence supporting a class claim of

pregnancy discrimination); Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(4)(c).

both having an abortion and choosing not to have an abortion, thus protecting pregnant

employees who decide to continue their pregnancies.

100

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and the Interaction Between State Laws Regarding Abortion and

the PWFA

Some comments asserted that covered entities cannot be required to provide

accommodations relating to an abortion because some State laws prohibit abortion under certain

circumstances. Some comments also noted that some State laws provide that an individual may

sue another individual for conduct that aids in the performance of an abortion in violation of

State law. A few comments stated that the rule will compel State and local governments to

provide accommodations contrary to State law, and that doing so transgresses limits of

federalism; one comment asserted that certain Senators were concerned about litigation against

the States and voted to remove the PWFA’s text that waives State immunity to lawsuits.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and the Interaction Between State Laws Regarding

Abortion and the PWFA

The Commission does not agree with comments that the inclusion of abortion in the

definition of “pregnancy, childbirth, or related medical conditions” requires covered entities,

including State and local governments, to violate State laws that limit access to abortion, nor

does the rule transgress limits of federalism. The rule does not prescribe when, where, or under

what circumstances an abortion can be obtained or what procedures may be used. If the issue of a

100

See, e.g., Ryan’s Pointe Houston, 2022 WL 4494148, at *7; Press Release, EEOC, Best Western Hotels in

Tacoma and Federal Way To Pay $365,000 To Settle EEOC Suit for Harassment (July 5, 2012) (announcing

settlement of a harassment case by the EEOC that included allegations that the harasser belittled the religious beliefs

of employees, including telling a pregnant employee she should have an abortion even though she said it was against

her religious beliefs).

PWFA accommodation regarding abortion arises, it will likely concern only a request by a

qualified employee for leave from work.

101

Accordingly, State laws that regulate the provision of

abortions in certain circumstances do not conflict with covered entities’ obligations under the

PWFA.

Any potential interaction or conflict between PWFA and State laws, including State laws

that allow civil suits to challenge actions that private individuals claim aid in the provision of an

abortion, will be addressed on a case-by-case basis. Of note, the PWFA does not require an

employer to pay for an abortion, and neither does the regulation.

102

The Commission agrees that State and local governments are covered employers and are

required to provide accommodations under the PWFA, absent undue hardship. As stated above,

any potential interaction or conflict between a State law and the PWFA will be addressed on a

case-by-case basis. Further, States and local governments that are covered by the PWFA are

covered by Title VII, which has protected employees’ rights to be free from discrimination in

employment for having, or for not having, an abortion for nearly 45 years, and yet comments on

this topic did not point to a situation where a State was forced to violate its own laws. Finally,

Congress did not vote to remove the section of the PWFA that waives State sovereign immunity;

that provision is in 42 U.S.C. 2000gg–4.

Ultimately, whether any particular action taken by an employer pursuant to the PWFA

could potentially implicate State law is dependent on the content of each individual State’s laws,

including how those laws are interpreted by each State’s courts. As noted above, commenters did

101

42 U.S.C. 2000gg–5(a)(2) provides that “[n]othing in this chapter shall be construed . . . by regulation or

otherwise, to require an employer-sponsored health plan to pay for or cover any particular item, procedure, or

treatment or to affect any right or remedy available under any other Federal, State, or local law with respect to any

such payment or coverage requirement.” Some comments speculated that employers, including State and local

governments, could violate State laws restricting abortion access if they provided leave to employees who then

traveled across State lines to obtain abortion care. The Commission notes that employees can currently use their

leave to do so, and the comments did not explain why the leave being a reasonable accommodation under the PWFA

would create a different set of circumstances or a different result.

102

See 42 U.S.C. 2000gg–5(a)(2); 88 FR 54745 (stating that “nothing in the PWFA requires or forbids an employer

to pay for health insurance benefits for an abortion”). Covered entities may, however, be subject to Title VII’s

provisions regarding abortion coverage in certain circumstances. See 42 U.S.C. 2000e(k).

not identify any real-world scenarios in which Title VII’s protections for employees’ rights with

regard to abortion have led to employer concerns about liability under State law. To the extent

any such issues arise in connection with the PWFA, the Commission believes they are best

addressed on a case-by-case basis, particularly given the State- and fact-specific nature of these

issues.

Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and the Major Questions Doctrine

Some comments argued that to include abortion in the definition of “pregnancy,

childbirth, or related medical conditions” implicates the major questions doctrine.

103

In claiming that the major questions doctrine applies, comments stated that abortion has

been a heated political topic or a source of moral controversy; that the Dobbs majority and

dissent both found abortion to have important economic consequences; and that the possibility of

reasonable accommodations for an abortion meets the threshold of deep political significance,

implicating the major questions doctrine. Comments also stated that the Commission must show

that the decision to allow for possible reasonable accommodations for an abortion, absent undue

hardship, was clear in the text of the PWFA at the time of enactment; that if Congress wanted to

put paid abortion leave into the PWFA, it would have done so explicitly; and that the

Commission may not issue regulations with vast political significance unless clearly directed by

Congress.

By contrast, other comments disputed whether the major questions doctrine applies to the

PWFA and the Commission’s definition of “pregnancy, childbirth, or related medical

103

The major questions doctrine applies to “extraordinary cases that call for a different approach—cases in which

the history and the breadth of the authority that [the agency] has asserted, and the economic and political

significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such

authority.” West Virginia v. EPA, 597 U.S. 697, 721 (2022) (internal quotation marks omitted). Under this doctrine,

the Court has rejected agency claims of statutory authority when: (1) the underlying claim of authority concerns an

issue of “vast economic and political significance,” and (2) Congress has not clearly empowered the agency with

authority over the issue. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (internal quotation marks omitted).

conditions.” For instance, one detailed comment noted that the Supreme Court has limited the

major questions doctrine to a narrow category of extraordinary paradigm cases that are very

different from the posture of the PWFA rulemaking.

104

The comment stated that none of the

indicia of a major question exist in this rulemaking—the Commission is merely interpreting a

phrase the same way it did in Title VII, with no change to the prevailing interpretation of this

longstanding statutory text. Additionally, the comment asserted the rule does not address

questions of such vast economic and political significance as to raise a presumption against

congressional delegation of authority and the comment supported the rule as an exercise of

agency authority to interpret and implement a statute, using the same long-established textual

interpretation as in a related statute.

Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and the Major Questions Doctrine

The Commission disagrees that inclusion of abortion in the definition of “pregnancy,

childbirth, or related medical conditions” implicates the major questions doctrine. The inclusion

of abortion in the definition of “pregnancy, childbirth, or related medical conditions” is for the

limited purpose of qualifying for a workplace accommodation under the PWFA, which is subject

to defenses and case-by-case assessment. Moreover, the Commission anticipates that any

requests for accommodations related to abortion will typically involve the provision of unpaid

leave. Thus, including abortion in the definition of “pregnancy, childbirth, or related medical

conditions” is not the type of “extraordinary case[]” that implicates the major questions

doctrine.

105

The Commission is simply implementing Congress’ intent by confirming that the

term “related medical conditions” has the same meaning given to the term in Title VII for over

104

See Comment EEOC-2023-0004-98328, Professors Greer Donley, David S. Cohen, Rachel Rebouche, Kate

Shaw, Melissa Murray, and Leah Litman (Oct. 10, 2023).

105

See West Virginia, 597 U.S. at 721.

four decades. Thus, the Commission is effectuating a policy decision made by Congress itself,

not claiming a “newfound power” that would “represent[] a transformative expansion in its

regulatory authority” or “make a radical or fundamental change to a statutory scheme.”

106

And

no court has applied the major questions doctrine to the Commission’s identical interpretation of

Title VII’s identical text.

The provision of possible reasonable accommodations for known limitations related to an

abortion does not have the type of economic impact found in other cases that successfully

invoked the major questions doctrine. Because the PWFA prohibits any requirement “by

regulation or otherwise . . . [for] an employer-sponsored health plan to pay for or cover a

particular item, procedure, or treatment,” the Commission anticipates that most requests for

accommodations related to an abortion will involve only the provision of leave, which will likely

be unpaid.

107

Thus, any economic impact will be minimal.

Further, the Commission’s use of the term does not “effec[t] a ‘fundamental revision of

the statute, changing it from [one sort of] scheme of . . . regulation’ into an entirely different

kind”;

108

rather, it implements a new statute by harmonizing the meaning of “pregnancy,

childbirth, or related medical conditions” in Title VII and the PWFA. The “consistency of [an

agency’s] prior position is significant” when it comes to the major questions doctrine, because

“[i]t provides important context” about what Congress “understood” the statute to permit.

109

“Congress must be taken to have been familiar with the existing administrative interpretation.”

110

The relevant statutory language—“pregnancy, childbirth, or related medical conditions”—has a

106

Id. at 723–24 (internal quotation marks omitted).

107

See 42 U.S.C. 2000gg–5(a)(2).

108

Biden v. Nebraska, 600 U.S. __, 143 S. Ct. 2355, 2373 (2023) (quoting West Virginia, 597 U.S. at 728).

109

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 157 (2000).

110

McFeely v. Comm’r of Internal Revenue, 296 U.S. 102, 110 (1935).

well-documented, consistent, and historical definition, and the Commission is within its authority

to use that definition in implementing a new statute.

By contrast, were the Commission to stray from Title VII’s interpretation of “pregnancy,

childbirth, or related medical conditions” for the purpose of adopting a definition that excluded

abortion, the Commission would be taking a novel stance, contrary to the language of the PWFA

and the intent expressed by Congress in using the language of Title VII.

Comment Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth, or

Related Medical Conditions” and Separation of Powers Concerns

One comment raised a constitutional objection to the Commission’s structure, asserting

that the President can remove Commissioners “only for cause.”

Response to Comment Regarding the Commission’s Proposed Definition of “Pregnancy,

Childbirth, or Related Medical Conditions” and Separation of Powers Concerns

The Commission disagrees that there is any constitutional defect in the agency’s

structure, and, in any event, the comment provides no basis to believe that anything about the

rule or its implementation would be different if the Commission had a different structure.

1636.3(c) Employee’s Representative

Several comments suggested additions to the definition of “employee’s representative,”

including “union representative,” “co-worker,” and “manager.” The Commission has added

“union representative” to the list, which is further illustrated in Example #31. The addition

reflects an important kind of representative and differs from the other illustrative third parties

listed. The Commission has not made further changes to the list. The list in the proposed

regulation mirrors that set out in ADA

111

policy and is not exhaustive. Further, the Commission

believes that the addition of “manager” would not add clarity to the definition and would risk

confusing management officials about their roles and obligations under the PWFA.

Other comments proposed changing “other representative” to what they believe to be

more descriptive language, such as “any other person who communicates.” The Commission is

maintaining “representative” because it is the language used in the statute.

Several comments recommended that the rule require the employee’s representative to

have the employee’s permission to communicate the employee’s limitation. The Commission

expects that normally the representative will have the employee’s permission but notes that there

may be situations, for example when the employee is incapacitated, where that may not be

possible. The Commission has added this information in the Interpretive Guidance in section

1636.3(c) Employee’s Representative. The Commission declines to delineate a specific form or

manner for an individual to be considered a representative because this would unnecessarily

increase the burden on employees and potentially delay the processing of an accommodation

request. The PWFA intends to make seeking and obtaining an accommodation efficient and

effective. Requiring an employee to submit evidence of their authorization to enable a third party

to request an accommodation on their behalf would thwart the PWFA’s efforts to make such

communication a simple task.

Several comments proposed that once the employee’s representative has made the need

for an accommodation known, the employer must then engage in the interactive process directly

with the employee. Again, the Commission expects that this will be the normal situation but

notes, for example, that when the employee is incapacitated or the representative is the

employee’s attorney, the employer may need to continue to engage with the representative rather

111

See EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA,

Question 2 (2002) [hereinafter Enforcement Guidance on Reasonable Accommodation],

http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-

ada.

than the employee. The Commission has added information to this effect in the Interpretive

Guidance in 1636.3(c) Employee’s Representative. Finally, the Commission has removed the

word “known” before “limitation” in the Interpretive Guidance for this section because the

limitation is not “known” until it has been communicated.

1636.3(d) Communicated to the Employer

The Commission received numerous comments regarding the definition of

“communicated to the employer,” what information the employee should have to provide to the

employer, with whom the employee should communicate, and what the employer can or cannot

require the employee to do after the initial request.

Several comments correctly pointed out that the statutory definition of “communicated to

the employer” in the PWFA does not include a description or requirement of how the employee

must request a reasonable accommodation. Thus, the Commission has moved the information

regarding how an employee requests a reasonable accommodation (formerly in proposed §

1636.3(d)(3)) to the section of the rule regarding reasonable accommodations (§ 1636.3(h)(2)).

Although these sections are now separate and therefore follow the statutory text more closely,

they have many important commonalities. Specifically, both communicating to the employer

regarding the limitation and requesting a reasonable accommodation should be simple processes

that do not require any specific language; both can be made to the same people at the covered

entity at the same time; and for both there are limitations as to the information the covered entity

can require. In practice, the Commission recognizes that in most cases these communications

will occur simultaneously: an employee will communicate about their limitation in the process of

informing the employer that they need an adjustment or change at work for reasons related to the

limitation.

Thus, the final regulation’s definition of “communicated to the employer” consists only

of § 1636.3(d) introductory text and (d)(1) and (2) from the NPRM. Paragraph (d)(3), with some

modifications, has been moved to § 1636.3(h)(2).

Section 1636.3(d) of the proposed regulation stated that “communicated to the employer”

means to make known to the covered entity either by communicating with a supervisor, manager,

someone who has supervisory authority for the employee (or the equivalent for an applicant), or

human resources personnel, or by following the covered entity’s policy to request an

accommodation. Several comments suggested that this list include someone “who directs the

employee’s tasks” in order to better reflect circumstances where a workplace may not use a

supervisory structure or specific job titles. The Commission agrees that this additional language

will help employees and covered entities better understand that such communication also is

appropriately directed to those individuals whom an employee would normally consult if they

had a question or concern. Thus, the final rule includes the addition of “or who regularly directs

the employee’s tasks.” Some comments also suggested that the Commission clarify that the

entity with whom the employee may communicate could include any agents of the employer

such as a search firm, staffing agency, or third-party benefits administrator. The Commission has

included that information in the Interpretive Guidance in section 1636.3(d) Communicated to the

Employer and 1636.3(h)(2) How To Request a Reasonable Accommodation and has covered

these entities in the regulation by adding “another appropriate official,” a term that also serves to

cover other entities with authority for the employee who may not have one of the titles used in

the rest of this portion of the regulation.

Paragraph (d)(1) has not changed from the NPRM. In paragraph (d)(2), the Commission

has added that the communication regarding the limitation need not use specific words in order

for it to be considered “communicated to the employer.” The Commission also has changed the

structure of this sentence so that it matches that of paragraph (d)(1) and refers to the

communication, rather than what a covered entity may or may not require and has slightly

changed the wording of the prohibitions. For example, the proposed rule said, “any specific

format” and the final rule says, “in a specific format”; and the proposed rule said, “any particular

form” and the final rule says, “on a specific form.”

In the Interpretive Guidance in section 1636.3(d) Communicated to the Employer and

1636.3(h)(2) How To Request a Reasonable Accommodation, the Commission has combined the

information for § 1636.3(d) and (h)(2) to emphasize that the communication of the limitation and

the request for an accommodation will usually happen at the same time, that both should be

simple tasks, and that both are governed by the same rules regarding with whom the employee

may communicate, and the lack of a requirement for any specific words or forms (§ 1636.3(d)).

The Commission also has added information explaining that, because many situations that may

qualify for coverage under the PWFA could be classified as either a “limitation” (a physical or

mental condition related to, affected by, or arising out of pregnancy, childbirth, or related

medical conditions) or “pregnancy, childbirth, or related medical conditions,” employees do not

need to identify a specific part of the regulation under which they believe they are entitled to

coverage in order to make a request. Employers should not decide that an employee is not

covered by the PWFA or otherwise restrict an employee’s rights under the PWFA because the

employer thinks the employee has improperly labeled something a “limitation” when it is better

characterized as a “related medical condition,” or the reverse. For example, if an employee needs

bed rest because they are pregnant and have placenta previa, the placenta previa could be the

“physical or mental condition” related to, affected by, or arising out of pregnancy, or the placenta

previa could be a “related medical condition” to pregnancy and the physical or mental condition

could be the need to limit walking or standing. In either instance, the employee is covered by the

PWFA and can request an accommodation.

The Interpretive Guidance in section 1636.3(d) Communicated to the Employer and

1636.3(h)(2) How To Request a Reasonable Accommodation also has been modified to explain

that an employee is not required to identify the statute under which they are requesting a

reasonable accommodation (e.g., the ADA, the PWFA, or Title VII). Doing so would require that

employees seeking accommodations use specific words or phrases, which the regulation

prohibits.

Finally, the Commission has added information to the Interpretive Guidance that explains

the types of people with whom the employee may communicate as set out in the final rule. The

Commission has moved the examples that were in § 1636.3(d) in the NPRM to section

1636.3(h)(2) How To Request a Reasonable Accommodation in the Interpretive Guidance and

has added an explanation at the start of the list of examples regarding the communications, rather

than having an explanation after each example.

1636.3(e) Consideration of Mitigating Measures

The Commission received very few comments concerning mitigating measures. The

language in the final rule is unchanged from the proposed rule and is the same as the language in

the ADA regulation, except that the Commission made a minor edit for accuracy to remove the

word “known” from § 1636.3(e)(1). This edit is necessary because the consideration of

mitigating measures would only affect the determination of whether an employee has a limitation

and not whether that limitation is “known.” The Commission further changed language in the

Interpretive Guidance in section 1636.3(e) Consideration of Mitigating Measures slightly to

point out that the ameliorative effects of mitigating measures can be considered when

determining the appropriate reasonable accommodation.

112

1636.3(f) Qualified Employee

1636.3(f)(1) With or Without Reasonable Accommodation

112

The Commission notes that “mitigating measures” for the purposes of the PWFA are not the same as “mitigation

measures” taken as part of occupational safety and health which refer to actions taken by employers. See, e.g., U.S.

Dep’t of Health & Hum. Servs., Ctrs. for Disease Control & Prevention, Nat’l Inst. for Occupational Safety &

Health, Hierarchy of Controls (Jan. 17, 2023), https://www.cdc.gov/niosh/topics/hierarchy/default.html.

The Commission received very few comments concerning the definition of “qualified

employee” as an employee who, with or without reasonable accommodation, can perform the

essential functions of the job. The final rule maintains the language from the proposed rule,

which uses the language from the ADA.

The Commission also did not receive many comments regarding the definition of

“qualified” for the reasonable accommodation of leave and has maintained that definition and the

language in § 1636.3(f)(1) and in the Interpretive Guidance in section 1636.3(f)(1) under

“Qualified” for the Reasonable Accommodation of Leave. The Commission addresses other

comments it received regarding leave as a reasonable accommodation in the preamble in section

1636.3(h) under Particular Matters Regarding Leave as a Reasonable Accommodation.

1636.3(f)(2) Temporary Suspension of an Essential Function(s)

The Commission received numerous comments regarding the definition of “qualified”

with regard to the temporary suspension of essential function(s), the definition of “temporary,”

the definition of “in the near future,” how different periods of temporary suspension of essential

function(s) should be considered, whether more than one essential function can be suspended,

and the meaning of “can be reasonably accommodated.”

Preliminarily, it is important to emphasize that the definition of “qualified” that includes

the temporary suspension of an essential function is taken directly from the text of the statute. It

is not a creation of the Commission, and the Commission could not ignore it or read it out of the

statute, as some comments suggested. Second, as noted in the NPRM, this definition of

“qualified” is relevant only when an employee cannot perform one or more essential functions of

the job in question, with or without a reasonable accommodation, due to a known limitation. It is

not relevant in any other circumstance. If the employee can perform the essential functions of the

position with or without a reasonable accommodation, the first definition of “qualified” applies

(i.e., able to do the job with or without a reasonable accommodation). Third, this definition is

relevant solely to determining whether an employee is “qualified.” An employer may still defend

the failure to provide a reasonable accommodation based on undue hardship. Thus, the

Commission responds to concerns regarding the possible disruption of production or scheduling

or difficulties in accommodating the temporary suspension of an essential function(s) that a

certain employer may face in the discussion of undue hardship (in the preamble in section

1636.3(j)(3) Undue Hardship–Temporary Suspension of an Essential Function(s)) rather than in

the discussion of the definition of “qualified.”

1636.3(f)(2)(i) Temporary

The Commission received several comments regarding the definition of “temporary.”

Some asserted that the Commission’s definition was subsumed by the definition of “in the near

future,” while others argued that the definitions of “temporary” and “in the near future” should

be the same. The Commission has not changed the definition of “temporary.” As Congress set

out two terms (“temporary” and “in the near future”), the Commission should define both and

not assume that they are the same. The definition that the Commission proposed in the NPRM

for “temporary” is consistent with the dictionary definition of this term and the legislative history

of the provision.

113

1636.3(f)(2)(ii) In the Near Future

The Commission’s proposed definition of “in the near future” had four parts: (1) how

long this would be for a current pregnancy (generally 40 weeks); (2) how long this should be for

conditions other than a current pregnancy (generally 40 weeks); (3) how leave should not count

in the determination of the time for which an essential function(s) is temporarily suspended; and

(4) how to address successive periods of suspension of essential function(s). As discussed below,

the Commission is maintaining the provisions in the NPRM for issues 1, 3, and 4.

113

88 FR 54777.

Comments and Response to Comments Regarding the Definition of “In the Near Future”

The NPRM proposed that for both a current pregnancy and conditions other than a

current pregnancy it would be presumed that the employee could perform the essential functions

of the position “in the near future” if they could do so within generally 40 weeks.

Many comments supported the idea that for a current pregnancy, an employee would be

considered qualified if they could perform the essential function(s) generally within 40 weeks of

the suspension of the essential function(s). As these comments pointed out, this would allow a

pregnant employee the ability to continue working and earning a paycheck during their

pregnancy, even if due to a known limitation they had to temporarily suspend an essential

function(s). As one comment noted, a shorter time could lead to “dangerous and perverse

consequences” such as employees “saving up” their ability to request the temporary suspension

of essential function(s), leading to potential risks to their health or the health of their pregnancy

early in the pregnancy, or employees being temporarily excused from essential function(s) early

in their pregnancy only to have to resume them later in their pregnancy in order to keep earning a

paycheck.

114

Several comments argued against the definition of “generally 40 weeks” for a current

pregnancy, stating that such a long time was not within the intent of Congress, was outside the

scope of the Commission’s regulatory authority, and was not in keeping with how courts have

defined this term in cases regarding leave and the ADA.

For conditions other than a current pregnancy, including post-pregnancy, the NPRM also

proposed “in the near future” to mean generally 40 weeks. Several comments, based on the

health care studies cited in the NPRM, recommended that for post-pregnancy reasons the

definition of “in the near future” should be 1 year. These comments also recommended that the

114

Comment EEOC-2023-0004-98298, A Better Balance 29–30 (Oct. 10, 2023).

definition of “in the near future” for lactation-related accommodations that require the temporary

suspension of an essential function(s) be 2 years, based on the recommendation of the American

Academy of Pediatrics.

Other comments pointed out that although pregnancy has a generally accepted length,

other conditions do not. As a result, these comments asserted, an individualized assessment, akin

to when a person with a disability is having surgery and then must go on leave, is more

appropriate. Other comments suggested that the definition should be less than 6 months, based

on an ADA case cited in the House Report on the PWFA.

115

In the final rule, the Commission has changed the provision in the regulation defining “in

the near future” at § 1636.3(f)(2)(ii) so that the determination will be made on a case-by-case

basis. This determination, however, includes the concept from the NPRM’s definition of “in the

near future,” which explained that, if the employee is pregnant, it is assumed that the employee

could perform the essential function(s) in the near future because they could perform the

essential function(s) within generally 40 weeks of their suspension.

The Commission is retaining “generally 40 weeks”

116

in the final regulation’s definition

of “in the near future” for pregnant employees for several reasons. First, one of the purposes of

the PWFA is to provide pregnant employees with the ability to keep working while they are

pregnant in order to protect their economic security as well as their health and the health of their

pregnancy. Given the established length of pregnancy, this goal cannot be met if the employee is

not considered qualified simply because they have to suspend an essential function(s) for

generally 40 weeks. Second, Congress did not provide a definition for “in the near future” but

115

H.R. Rep. No. 117-27, pt. 1, at 28 (citing Robert v. Bd. of Cnty. Comm’rs of Brown Cnty., 691 F.3d 1211, 1218

(10th Cir. 2012)). However, the Commission notes that the House Report does not assign a definition to “in the near

future.” Although Robert notes an Eighth Circuit case that found that a 6-month leave request “was too long to be a

reasonable accommodation,” it stated that with respect to the durational element of in the “near future,” “this court

has not specified how near that future must be” and declined to address whether a more than 6-month

accommodation “exceeded reasonable durational bounds.” Robert, 691 F.3d at 1218.

116

One comment noted that pregnancy can last 42 weeks or longer. To account for this, the EEOC is using the

phrase “generally 40 weeks.”

did give the Commission rulemaking authority for the statute.

117

Defining terms within a statute

that have not been defined by Congress is well within the rulemaking authority of the agency

directed by the law to write rules for it.

118

Furthermore, as explained below, courts have

generally determined that indefinite amounts of time cannot be “in the near future.” Because

pregnancy by definition is not indefinite, defining “in the near future” to be the length of a

pregnancy is consistent with the views of courts and with the purpose of the PWFA.

Those who opposed generally 40 weeks as the definition of “in the near future” for

pregnant employees did not explain how a shorter definition would impact pregnant employees

or why the definition should change from workplace to workplace, given the established length

of pregnancy. Given that there is a history of employers failing to provide pregnant employees

light duty positions to the severe detriment of those employees, even after the Supreme Court’s

decision in Young v. United Parcel Service,

119

and Congress’ awareness of this problem,

120

the

Commission believes it is necessary to define “in the near future” for the PWFA’s second

definition of “qualified” as the full length of a pregnancy. The Commission agrees with

comments stating that a shorter period of time could create situations where an employee

continues to perform an essential function(s) in order to save time when they are not required to

perform the essential function(s) for later in their pregnancy or following childbirth, thus

imperiling their health or the health of the pregnancy, or where an employee is forced to return to

117

42 U.S.C. 2000gg–3(a).

118

See AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397 (1999) (“Congress is well aware that the ambiguities it

chooses to produce in a statute will be resolved by the implementing agency.”); Smiley v. Citibank (South Dakota),

N.A., 517 U.S. 735, 740–41 (1996) (“[T]hat Congress, when it left ambiguity in a statute meant for implementation

by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the

agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”); Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“The power of an administrative agency to administer

a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill

any gap left, implicitly or explicitly, by Congress.”) (omission in original) (citation omitted).

119

575 U.S. 206; see, e.g., EEOC v. Wal-Mart Stores E., L.P., 46 F.4th 587 (7th Cir. 2022); Legg v. Ulster Cnty.,

820 F.3d 67 (2d Cir. 2016).

120

H.R. Rep. No. 117-27, pt. 1, at 14–17.

the performance of an essential function(s) later in their pregnancy, despite the health risks. The

Commission reiterates that this rule does not mean that a pregnant employee is automatically

entitled to the temporary suspension of one or more essential functions for 40 weeks, or that the

employee will need the suspension of one or more essential functions for 40 weeks. The

temporary suspension must be able to be reasonably accommodated, and the employer retains the

ability to establish that the reasonable accommodation causes an undue hardship.

The Commission agrees that there should not be a presumptively consistent measure of

the term “in the near future” for issues other than current pregnancy. The physical or mental

conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions faced by employees other than those who are currently pregnant certainly may be

serious and may, in some cases, mean that an employee may seek to have one or more essential

functions of the job temporarily suspended. Unlike a current pregnancy, however, there is not a

consistent measure of how long these diverse conditions generally will last or, thus, of what “in

the near future” might mean in these instances.

In explaining the inclusion of this additional definition of “qualified,” the House Report

analogized the suspension of an essential function under the PWFA to cases under the ADA

regarding leave.

121

Thus, ADA leave cases provide some helpful guideposts for employers and

employees to understand this term in the context of whether an employee is “qualified” under the

PWFA in situations not involving a current pregnancy. First, an employee who needs indefinite

leave (that is, leave for a period of time that they cannot reasonably estimate under the

circumstances) cannot perform essential job functions “in the near future.”

122

Similarly, a request

to indefinitely suspend an essential function(s) cannot reasonably be considered to meet the

standard of an employee who could perform the essential function(s) “in the near future.”

121

Id. at 27–28.

122

Id.; see also, e.g., Herrmann v. Salt Lake City Corp., 21 F.4th 666, 676–77 (10th Cir. 2021); Cisneros v. Wilson,

226 F.3d 1113, 1129 (10th Cir. 2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356 (2001).

However, the Commission notes that the temporary suspension of an essential function(s) is not

“indefinite” simply because the employee cannot pinpoint the exact date when they expect to be

able to perform the essential function(s) or can provide only an estimated range of dates.

123

Nor

do these circumstances mean that the employee cannot perform the job’s essential functions “in

the near future.”

124

Beyond an agreement that an indefinite amount of time does not meet the standard of “in

the near future,” courts’ definitions of how long a period of leave may be under the ADA and

still be a reasonable accommodation (thus, allowing the individual to remain qualified) vary.

125

123

See, e.g., Randall v. Smith & Edwards Co., 1:20-CV-00183, 2023 WL 3742818, at *33–*34 (D. Utah May 31,

2023) (determining that the employee, who requested leave to undergo liver transplant surgery, presented enough

evidence to allow a reasonable jury to conclude that his leave request was not indefinite where evidence indicated

that the employer understood that he could undergo the transplant “any day” and “would return to work within, at

most, 12 weeks of his surgery”); Ellis v. Salt Lake City Corp., 2:17-CV-00245, 2023 WL 2742756, at *11–*12 (D.

Utah Mar. 31, 2023) (concluding that the employee’s request to remain on leave until the appeal of her demotion

was resolved was not a request for indefinite leave, as she “provided a general timeframe for her return in the near

future”), appeal filed (10th Cir. May 2, 2023); Johnson v. Del. Cnty. Cmty. Coll., 2:15-CV-01310, 2015 WL

8316624, at *1, *5 (E.D. Pa. Dec. 9, 2015) (determining that a custodian, who was on medical leave for nearly 5

months due to a knee injury and requested “a brief extension of medical leave” to undergo surgery and physical

therapy, “did not request an indefinite leave”); Criado v. IBM Corp., 145 F.3d 437, 443–44 (1st Cir. 1998)

(concluding that an employee’s request for additional leave to “allow her physician to design an effective treatment

program” with no specific return date given could be a reasonable accommodation); Graves v. Finch Pryun & Co.,

457 F.3d 181, 185–86 (2d Cir. 2006) (reasoning that an employee’s request “for ‘more time’ to get a doctor’s

appointment” that would take “maybe a couple weeks” was not a request for indefinite leave).

124

The fact that an exact date is not necessary is supported by the definition in the statute, which requires that the

essential function(s) “could” be performed in the near future. 42 U.S.C. 2000gg(6)(B).

125

See, e.g., Robert, 691 F.3d at 1218 (citing a case in which a 6-month leave request was too long to be a

reasonable accommodation but declining to address whether, in the instant case, a further exemption following the

6-month temporary accommodation at issue would exceed “reasonable durational bounds”) (citing Epps v. City of

Pine Lawn, 353 F.3d 588, 593 (8th Cir. 2003)); see also Blanchet v. Charter Commc’ns, LLC, 27 F.4th 1221, 1225–

26, 1230–31 (6th Cir. 2022) (determining that a pregnant employee who developed postpartum depression and

requested a 5-month leave after her initial return date and was fired after requesting an additional 60 days of leave

could still be “qualified,” as additional leave could have been a reasonable accommodation); Cleveland v. Fed.

Express Corp., 83 F. App’x 74, 76–81 (6th Cir. 2003) (declining “to adopt a bright-line rule defining a maximum

duration of leave that can constitute a reasonable accommodation” and determining that a 6-month medical leave for

a pregnant employee with systemic lupus could be a reasonable accommodation); Garcia-Ayala v. Lederle

Parenterals, Inc., 212 F.3d 638, 641–42, 646–49 (1st Cir. 2000) (reversing the district court’s finding that a

secretary was not a “qualified individual” under the ADA because additional months of unpaid leave could be a

reasonable accommodation, even though she had already taken over year of medical leave for breast cancer

treatment, and rejecting per se rules as to when additional medical leave is unreasonable); Nunes v. Wal-Mart Stores,

Inc., 164 F.3d 1243, 1245–1247 (9th Cir. 1999) (holding that, because extending leave to 9 months to treat a fainting

disorder could be a reasonable accommodation, an employee’s inability to work during that period of leave did not

automatically render her unqualified); Cayetano v. Fed. Express Corp., No. 1:19-CV-10619, 2022 WL 2467735, at

*1–*2, *4–*7 (S.D.N.Y. July 6, 2022) (determining that an employee who underwent shoulder surgery could be

“qualified” because 6 months of leave is not per se unreasonable as a matter of law); Durrant v. Chemical/Chase

Bank/Manhattan Bank, N.A., 81 F. Supp. 2d 518, 519, 521–22 (S.D.N.Y. 2000) (concluding that an employee who

The Commission believes, however, that depending on the facts of a case “in the near future”

may extend beyond the 6-month limit suggested by some comments under the PWFA for three

reasons.

First, what constitutes “in the near future” may differ depending on factors including, but

not limited to, the known limitation and the employee’s position. For example, an employee

whose essential job functions require lifting during only the summer months would remain

qualified even if unable to lift during a 7-month period over the fall, winter, and spring months

because the employee could perform the essential function “in the near future” (in this case, as

soon as the employee was required to perform that function). Second, the determination of

whether the employee could resume the essential function(s) of their position in the near future is

only one aspect of establishing that an employee is qualified despite not being able to perform an

essential function(s). If the temporary suspension cannot be reasonably accommodated or if the

temporary suspension causes an undue hardship, the employer is not required to provide a

reasonable accommodation. Third, as detailed in the NPRM, especially in the first year after

giving birth, employees may experience serious health issues related to pregnancy, childbirth, or

related medical conditions that may prevent them from performing the essential function(s) of

their positions.

126

Accommodating these situations and allowing employees to stay employed is

one of the key purposes of the PWFA. To assist employers and employees in making this

determination, the Commission has added several examples in the Interpretive Guidance in

was on leave for nearly 1 year due to a leg injury and extended her leave to treat a psychiatric condition could be

“qualified” under the ADA with the accommodation of additional leave of reasonable duration).The Commission is

aware of and disagrees with ADA cases that held, for example, that 2 to 3 months of leave following a 12-week

FMLA period was presumptively unreasonable as an accommodation. See, e.g., Severson v. Heartland Woodcraft,

Inc., 872 F.3d 476, 481 (7th Cir. 2017).

126

See Susanna Trost et al., U.S. Dep’t of Health & Hum. Servs., Ctrs. For Disease Control & Prevention,

Pregnancy-Related Deaths: Data from Maternal Mortality Review Committees in 36 U.S. States, 2017–2019 (2022),

https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html (stating that 53% of

pregnancy-related deaths occurred from one week to one year after delivery, and 30% occurred one- and one-half

months to one year postpartum).

section 1636.3(f)(2) Qualified Employee—Temporary Suspension of an Essential Function(s)

regarding “in the near future” and non-pregnancy conditions.

Additionally, the Commission disagrees that the terms “temporary” and “in the near

future” should be defined using the definition of “transitory” under the ADA.

127

Congress knew

of this definition but decided not to incorporate it into the PWFA and used different terms

(“temporary” and “in the near future,” not “transitory”).

Comments and Response to Comments Regarding Leave Not Being Part of the Calculation of the

Temporary Suspension of an Essential Function(s).

The Commission did not receive many comments regarding whether leave should be

counted as part of the definition of “qualified” for the suspension of an essential function(s).

Those comments it did receive supported the Commission’s view that it should not be counted;

the Commission has maintained that position.

Comments and Response to Comments Regarding Resetting the Clock for the Temporary

Suspension of an Essential Function(s)

The Commission received several comments regarding the proposal that the clock for

determining “in the near future” should reset after childbirth. Some comments supported this for

the reasons set out in the NPRM, specifically, that a pregnant employee cannot know whether or

for how long they will need the temporary suspension of an essential function(s) after they give

birth. Further, not resetting the clock could create the same issues discussed above of creating

dangerous or perverse incentives for employees to “save” the temporary suspension of an

essential function(s) for later in their pregnancy or post-pregnancy, even when it could lead to

potential risks to their health or the health of their pregnancy. Conversely, several comments

127

42 U.S.C. 12102(3)(B).

argued that allowing the clock to reset would permit employees to “stack” the temporary

suspension of essential functions to get more than 40 weeks of an essential function(s)

suspended. Given that the definition of “in the near future” for non-pregnancy issues has

changed, this is less of a concern for the final rule. Additionally, as stated above, employees are

not automatically granted 40 weeks of suspension of an essential function(s) during pregnancy

under the regulation. Rather, they are merely considered “qualified.” Many employees will need

less than 40 weeks of a temporary suspension of an essential function(s).

The Commission also received comments recommending that resetting the clock be

added to the regulation itself. Because this general rule—that the determination of “qualified” is

made at the time of the employment decision

128

—applies to all accommodations, the

Commission has not added it to this part of the regulation. The Commission has included this

general rule in the Interpretive Guidance in section 1636.3(f) Qualified Employee and has added

a specific reference to when essential functions are being temporarily suspended to state that

determining “in the near future” should start at the time of the employment decision in the

Interpretive Guidance in section 1636.3(f)(2)(ii) In the Near Future.

The Commission also received comments interpreting the statute to say that only one

essential function could be temporarily suspended in a given pregnancy. The Commission

disagrees. First, the Commission notes that in interpreting acts of Congress, “words importing

the singular apply to several persons, parties, or things” unless the context indicates otherwise.

129

Further, such a rule would undercut the purpose of the PWFA and lead to lengthy delays for

litigation about what specific essential function was being suspended and whether it was the

same or a different function. Such a rule also does not reflect that a pregnant employee may need

128

See 29 CFR part 1630, appendix, 1630.2(m).

129

1 U.S.C. 1.

more than one essential function suspended or different essential functions suspended at different

times.

1636.3(f)(2)(iii) Can Be Reasonably Accommodated

The Commission received a few comments on its proposed definition of “can be

reasonably accommodated” that claimed that the NPRM had conflated this provision with undue

hardship. Other comments suggested that this provision required a new definition, with a lower

standard than “undue hardship,” that a covered entity could meet to show that the temporary

suspension of the essential function(s) could not be reasonably accommodated. The Commission

disagrees with these comments and is retaining the definition of this section set forth in the

NPRM. The Commission expects that the language that the temporary suspension of an essential

function(s) “can be reasonably accommodated” will be interpreted similarly to the idea that an

individual is “qualified” if they can do the job with or without a reasonable accommodation. If,

under the first definition of “qualified,” an employee cannot perform the essential functions of

the position without a reasonable accommodation, and there is no reasonable accommodation,

the employee is not qualified. Similarly, if the temporary suspension of the essential function(s)

cannot be “reasonably accommodated,” the employee is not qualified. Thus, the definition of

“can be reasonably accommodated” provides suggested means by which the temporary

suspension of an essential function(s) can be reasonably accommodated. Whether granting the

accommodation would impose undue hardship on the operation of the business of the covered

entity is a separate analysis.

130

The Commission has removed the reference to undue hardship

from this section in the Interpretive Guidance in order to avoid any confusion.

130

See, e.g., Barnett, 535 U.S. at 401–02 (describing ADA accommodations cases where, to defeat summary

judgment, a worker must show that the accommodation “seems reasonable on its face”; after such a showing, the

employer must show specific circumstances to prove an undue hardship).

The Commission made a few changes to the examples in this section in the Interpretive

Guidance. The Commission deleted former Example #7 from this section. In former Examples

#8 and #9 (now Examples #1 and #2), the Commission added: facts to clarify that there is work

for the employees to accomplish; the phrase “affected by, or arising out of” after “related to”;

and that the employees need an accommodation “due to” their limitation. The Commission

removed the sentences regarding undue hardship in order to focus the examples on the issue of

“qualified.” The Commission also added three additional examples to this section.

1636.3(g) Essential Functions

The NPRM adopted the definition of “essential functions” contained in the ADA

regulation and sought comment on whether there were additional factors that should be

considered in determining whether a function is “essential” for the purposes of the PWFA.

Several comments suggested clarifications or departures from the definition of “essential

functions” set forth in the ADA. These suggestions included proposed additions to the overall

definition of “essential functions”; a request to add a factor to § 1636.3(g)(1) to further explain

when a particular function is “essential”; and requests to delete, add, combine, or reorganize the

factors in § 1636.3(g)(2) that can establish whether a particular function is “essential.”

First, a few comments suggested adding language to § 1636.3(g) that would define

essential functions as discrete tasks and clarify that essential functions are not conditions of

employment regarding when, where, and how discrete tasks are performed. The Commission

declines to adopt this proposal. The term “essential functions” in the PWFA is the same term

used in the ADA, and therefore the definition of “essential functions” in the ADA regulation is

instructive.

131

The Commission concludes that the suggested departure from the language and

definition used in the ADA regulation is not appropriate. Although in the Commission’s view,

131

H.R. Rep. No. 117-27, pt. 1, at 28.

conditions of employment that are completely divorced from any job duties (e.g., a requirement

of “regular attendance” or “in-person work”) are not essential functions in and of themselves,

certain essential functions may need to be performed in a particular manner, time, or location.

132

For example, a neurosurgeon hired to perform surgeries may have to perform those surgeries in a

sterile operating room; a receptionist hired to greet clients and answer calls during business hours

may need to be available at certain times of day; and a truck driver responsible for transporting

hazardous materials may need to use a specific type of vehicle. The final regulation, therefore,

maintains the ADA regulatory language from 29 CFR 1630.2(n)(1).

133

Second, the Commission received comments requesting that it add a factor to those listed

in § 1636.3(g)(1) examining whether the function was essential during the limited time for which

the accommodation is needed. As described in the next paragraph, the Commission has added

this consideration to § 1636.3(g)(2). Because the list of factors in § 1636.3(g)(1) is non-

exhaustive, the Commission has retained the factors in § 1636.3(g)(1).

Third, the Commission received comments requesting modification, addition,

reorganization, or deletion of factors in § 1636.3(g)(2) that can be used to show a function is

“essential.” Because the factors in § 1636.3(g)(2) are not exhaustive, the Commission declines to

delete any factors, as this could incorrectly suggest that those factors are not relevant to PWFA

accommodations. Additionally, the Commission declines to reorder any factors to emphasize

their importance, as the factors in § 1636.3(g)(2) are not set forth in order of importance and the

significance of any particular factor will vary by case. However, in response to comments that

essential functions may change over time (or even by season), and that variations in essential

functions are particularly important where the need for accommodation is temporary (as is the

132

See Enforcement Guidance on Reasonable Accommodation, supra note 111, at Questions 22 & 34.

133

For completeness, the Commission has added “with a known limitation under the PWFA” after the word

“employee” in the regulation.

case for most known limitations), the Commission has made changes to § 1636.3(g)(2)(iii) to

clarify that seasonal or other temporal variations in essential functions should be considered.

Some comments asked for clarification on whether the employer’s judgment on essential

functions is given priority and whether an employer’s framing of the essential job functions can

undermine or limit an individual’s right to accommodation under the PWFA. First, as in the

ADA, an employer’s judgment as to which functions are “essential” is given due consideration

among various types of relevant evidence but is not dispositive.

134

Therefore, evidence that is

contrary to the employer’s judgment may be presented and used to demonstrate the employer’s

judgment is incorrect. To this point, the Commission also has revised the language in the

Interpretive Guidance in section 1636.3(g) Essential Functions to reinforce that the listed factors

in § 1636.3(g)(2) are non-exhaustive and fact-specific, which further underscores that no single

factor is dispositive, that not all factors apply in each case, and that additional factors may be

considered.

Finally, some comments questioned the effect of a temporary suspension of an essential

function(s) as a reasonable accommodation on future determinations of whether the function was

essential. Temporary suspension of an essential function(s) as a reasonable accommodation

pursuant to the PWFA does not mean that the function(s) is no longer essential. Whether

something is an essential function(s) remains a fact-specific determination, and the employer’s

temporary suspension of a job function(s) does not bar the employer from contending that the

function(s) is essential for other accommodation requests in the future.

1636.3(h) Reasonable Accommodation—Generally

1636.3(h)(1) Definition of Reasonable Accommodation

134

See 29 CFR part 1630, appendix 1630.2(n).

The Commission received very few comments regarding the definition of reasonable

accommodation, which uses the language from the ADA with certain changes to account for the

differences in statutes. The Commission is retaining the definition of reasonable accommodation

from the NPRM, with the following technical edits to § 1636.3(h)(1): insertion of the term

“qualified” in the definition of reasonable accommodation relating to applicants;

135

and removal

of the term “qualified” and addition of the phrase “as are enjoyed by its other similarly situated

employees without known limitations” in the definition of reasonable accommodation related to

benefits and privileges of employment.

136

These technical edits are necessary so that the

definition of reasonable accommodation parallels the ADA definition, as required by the PWFA.

The Commission also has moved the explanation of how to request a reasonable

accommodation, which was formerly part of § 1636.3(d), to § 1636.3(h)(2). As a result, the parts

of § 1636.3(h) have been renumbered so that the definition of reasonable accommodation is at §

1636.3(h)(1)(i) through (iv), and information regarding the interactive process is located at §

1636.3(h)(3).

137

1636.3(h)(2) How To Request a Reasonable Accommodation

The final rule contains a new section, § 1636.3(h)(2), that explains how an employee may

request a reasonable accommodation. This information was proposed to appear at § 1636.3(d).

The Commission received several comments regarding this section when it was part of

the “Communicated to the Employer” definition in the NPRM. First, comments expressed

135

As under the ADA, the term “qualified” in relation to applicants that are entitled to reasonable accommodation

under the PWFA refers to whether the applicant meets the initial requirements for the job in order to be considered

and not whether the applicant is able to perform the essential functions of the position with or without an

accommodation. See Enforcement Guidance on Reasonable Accommodation, supra note 111, at Question 13,

Example A and B.

136

As under the ADA, reasonable accommodation to enable employees to enjoy equal benefits and privileges under

the PWFA does not turn on whether an employee is qualified but on whether the benefit or privilege is available to

those who are similarly situated. See 29 CFR 1630.2(o)(1)(iii).

137

The Commission has not included the section from the proposed appendix “Additions to the Definition of

Reasonable Accommodation” in the Interpretive Guidance because its explanation of the PWFA and ADA rule

regarding the definition of reasonable accommodation is not necessary for the final Interpretive Guidance.

concern that the Commission’s original language (that this was the process to “request” a

reasonable accommodation) would add a requirement that employees phrase this as a “request”

and that employees may not know that they have the right to make such a request. The

Commission declines to change this provision. The examples in the NPRM (now Examples #6 to

#11 in the Interpretive Guidance in section 1636.3(h)(2) How To Request a Reasonable

Accommodation) do not require that the communication be phrased as a request. Additionally,

“request for accommodation” is the language the Commission uses in its ADA guidance,

138

and

the Commission believes that changing the language on this point would create confusion.

However, to respond to the comments, the Commission has added in the Interpretive Guidance in

section 1636.3(h)(2) How To Request a Reasonable Accommodation that a request for a

reasonable accommodation need not be formulated as a “request.”

Second, many comments suggested alternative language to proposed § 1636.3(d)(3)(i)

and (ii) (§ 1636.3(h)(2)(i) and (ii) in the final rule), stating that the emphasis should be that the

limitation necessitates a change (rather than the employee needing a change), that the rule should

require a limitation “or” needing a change (rather than “and”), or that communicating the

limitation was sufficient. The Commission declines to make these changes. First, the

Commission does not think it is appropriate or accurate to require that the limitation

“necessitates” a change; this may increase the burden on what an employee would have to show

and would complicate what should be simple communication. Second, while the Commission

agrees that the statute provides for accommodations for known limitations, having the process

start simply because the employee communicated a known limitation could lead to situations

where the accommodation process begins when it was not the employee’s intention, or it could

lead to covered entities assuming that an accommodation is necessary which could result in

violations of 42 U.S.C. 2000gg–1(2).

138

See Enforcement Guidance on Reasonable Accommodation, supra note 111, at Question 1.

Finally, some comments recommended including that the employee must connect the

need for the change with the limitation. The Commission agrees with this change and has added

that idea to § 1636.3(h)(2) (“needs an adjustment or change at work due to the limitation”). As

with the ADA and as shown in Examples #6 to #11, this is a simple communication that does not

require specific words.

The Commission also has moved the point that was in § 1636.3(b) in the proposed

regulation—that the employee need not mention a specific medical condition from the list in §

1636.3(b), or indeed any medical condition, or use medical terms—to § 1636.3(h)(2)(ii) so that

all of the information about requesting an accommodation is in one place.

Many comments addressed with whom the employee must communicate in order to start

the process. As with the definition of “Communicated to the Employer” (§ 1636.3(d)), the

employer should permit an employee to request an accommodation through multiple avenues and

means. Thus, the individuals at the covered entity to whom an employee may communicate to

start the reasonable accommodation process are the same as those in § 1636.3(d), and the

Interpretive Guidance language for that provision applies to requesting a reasonable

accommodation as well. Some comments recommended against allowing for a broad range of

individuals at the covered entity who could receive such requests because those who receive such

requests require training; other comments stated that an employer should be able through its

policy to limit the individuals who can receive such a request. The Commission did not make

changes to support these views because the steps to request a reasonable accommodation should

not be made more difficult and the individuals identified in § 1636.3(d) should be able to receive

and direct the requests if they are not able to grant them independently.

Several comments also addressed whether the employer could require the process to start

by the employee filling in a form and whether, if the employer had a process, the employee was

required to follow it so that a request would be considered only when made to the entity

identified in the employer’s policy. The Commission did not adopt either of these views. First,

requiring an employee to create a written request or to follow a specific provision to begin the

reasonable accommodation process is contrary to the idea that this should not be a difficult or

burdensome task for employees. Second, as one comment pointed out, some employees, such as

those facing intimate partner violence, may be cautious or afraid of putting into writing their

need for an accommodation.

139

Third, many of the limitations and accommodations under the

PWFA will be small or minor; the Commission expects that most accommodations will be

provided following nothing more than a conversation or email between the employee and their

supervisor, and there will not be any other forms or processes. If an employer does have a

process to confirm what was stated in the initial request and that process uses a form, the form

should be a simple one that does not deter the employee from making the request and does not

delay the provision of an accommodation.

Alleviating Increased Pain or Risk to Health Due to the Known Limitation

First, the Commission received numerous comments recommending that the amelioration

of pain or risk be added to the list in § 1636.3(h) for the definition of the term “reasonable

accommodation.” The Commission is not making this change. The statute at 42 U.S.C.

2000gg(7) states that the term “reasonable accommodation” shall have the same meaning under

the PWFA as it has in the ADA and the regulation under the PWFA. Section 1636.3(h) uses the

same definition as in the ADA and adds one paragraph regarding the temporary suspension of

essential functions, which is necessary pursuant to 42 U.S.C. 2000gg(6). As explained in the

NPRM and in the Interpretive Guidance in section 1636.3(h) under Alleviating Increased Pain or

Risk to Health Due to the Known Limitation, accommodations to alleviate increased pain or risk

139

Am. Coll. Of Obstetricians & Gynecologists, Comm. Opinion No. 518, Intimate Partner Violence (Feb. 2012;

reaff’d 2022), https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2012/02/intimate-

partner-violence (“Approximately 324,000 pregnant women are abused each year in the United States. . . . [T]he

severity of violence may sometimes escalate during pregnancy or the postpartum period.”).

fit under the current paragraphs in § 1636.3(h)(1)(i) through (iv).

140

This includes situations

where an employee can do the essential functions of the position, and the accommodation is to

alleviate increased pain or risk due to the known limitation.

141

This is because the reasonable

accommodations operate to “remove[] or alleviate[]” a covered individual’s “barriers to the equal

employment opportunity,” which may include making reasonable accommodations that mitigate

the increased pain or a health risk a qualified employee experiences related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions when performing their job.

142

Second, the Commission received several comments suggesting an edit to § 1636.3(i)(2)

in the proposed regulation, which listed examples of possible reasonable accommodations. The

comments pointed out that “adjustments to allow an employee or applicant to work without

increased pain or risk to the employee’s or applicant’s health or the health of the employee’s or

140

88 FR 54727 n.85 (“Depending on the facts of the case, the accommodation sought will allow the employee to

apply for the position, to perform the essential functions of the job, to enjoy equal benefits and privileges of

employment, or allow the temporary suspension of an essential function of the job.”).

141

Many Federal circuit courts to have considered this issue have agreed that under the ADA, an accommodation

needed to enable an employee to work without pain or risk to health may be required, even if the employee can

perform the essential job functions without the accommodation. See Burnett v. Ocean Props., Ltd., 987 F.3d 57, 68–

69 (1st Cir. 2021) (observing that the plaintiff’s ability to perform the essential functions of his job, albeit at the risk

of bodily injury, “does not necessarily mean he did not require an accommodation or that his requested

accommodation was unreasonable”); Bell v. O’Reilly Auto Enters., LLC, 972 F.3d 21, 24 (1st Cir. 2020) (“An

employee who can, with some difficulty, perform the essential functions of his job without accommodation remains

eligible to request and receive a reasonable accommodation.”); Hill v. Ass’n for Renewal in Educ., 897 F.3d 232,

239 (D.C. Cir. 2018) (rejecting the argument that no accommodation was required because the plaintiff “could

perform the essential functions of his job without accommodation, ‘but not without pain’”); Gleed v. AT&T Mobility

Servs., 613 F. App’x 535, 538–39 (6th Cir. 2015) (rejecting the argument that “if Gleed was physically capable of

doing his job—no matter the pain or risk to his health—then it had no obligation to provide him with any

accommodation, reasonable or not”); Feist v. La. Dep’t of Justice, 730 F.3d 450, 453 (5th Cir. 2013) (“[T]he

language of the ADA, and all available interpretive authority, indicate[s] that” “reasonable accommodations are not

restricted to modifications that enable performance of essential job functions.”); Sanchez v. Vilsack, 695 F.3d 1174,

1182 (10th Cir. 2012) (rejecting the argument that the Rehabilitation Act requires accommodation “only if an

employee cannot perform the essential functions of her job”); Buckingham v. United States, 998 F.2d 735, 740 (9th

Cir. 1993) (stating that, under the Rehabilitation Act, “employers are not relieved of their duty to accommodate

when employees are already able to perform the essential functions of the job”). Even cases that have rejected this

idea have done so on a very limited basis. See Hopman v. Union Pac. R.R., 68 F.4th 394, 402 (8th Cir. 2023)

(refusing to endorse the employer’s argument that the ADA “requires employers to provide reasonable

accommodations only when necessary to enable employees to perform the essential functions of their jobs” in all

cases and observing that the requirement to accommodate will be fact-specific); Brumfield v. City of Chicago, 735

F.3d 619, 632 (7th Cir. 2013) (holding that “an employer need not accommodate a disability that is irrelevant to an

employee’s ability to perform the essential functions of her job,” but not addressing whether alleviating pain is

“irrelevant” to essential job functions).

142

See 29 CFR part 1630, appendix, 1630.9 (“The reasonable accommodation requirement [under the ADA] is best

understood as a means by which barriers to the equal employment opportunity of an individual with a disability are

removed or alleviated.”).

applicant’s pregnancy” are the only accommodations listed that are expressly required to be “due

to the employee’s or applicant’s known limitation,” even though that is obviously true for any of

the other listed accommodations. The Commission agrees and has made this edit.

Third, the Commission received numerous suggestions of additional examples to include

in this section to illustrate modifications to alleviate increased pain or risk. The Commission has

added additional examples and information in the Interpretive Guidance in section 1636.3(h)

under Alleviating Increased Pain or Risk to Health Due to the Known Limitation, including, as

suggested by some comments, examples involving exposure to chemicals, commuting, excessive

heat, and contagious diseases. The Commission also has deleted one example.

Finally, the Commission received some comments expressing concern that the proposed

appendix examples’ focus on what was and what was not related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions would lead to employers focusing on this

issue, requiring documentation regarding this issue, and denying accommodations. These

comments also pointed out that, given pregnancy’s effect on the whole body, the situations set

out in the examples, especially former Examples #10 and #13 (now Examples #12 and #15 in the

Interpretive Guidance in section 1636.3(h) under Alleviating Increased Pain or Risk to Health

Due to the Known Limitation), were unrealistic and could cause covered entities and employees

to waste time trying to determine whether a limitation was related to, affected by, or arising out

of pregnancy, childbirth, or related medical conditions. The Commission appreciates the

concerns raised regarding these examples. At the same time, it is important that covered entities

and employees understand the principles illustrated in the examples so that voluntary compliance

with the PWFA is maximized. The Commission has edited these examples to account for these

concerns by, for example, changing or deleting language regarding the limitations that in the

example may not have been related to, affected by, or arising out of pregnancy, childbirth, or

related medical conditions. Finally, in order to highlight different reasons for accommodations,

the Commission has changed one of the examples to include lactation.

Ensuring That Employees Are Not Penalized for Using Reasonable Accommodations

The Commission received many comments agreeing with the general principle that

covered entities must ensure that their workplace policies or practices do not operate to penalize

employees for utilizing accommodations under the PWFA. Many of these comments also asked

for additional clarification and examples.

First, numerous comments suggested that the Commission explicitly state that the general

rule that a covered entity does not have to waive a production standard as a reasonable

accommodation does not apply when an employee has received the temporary suspension of an

essential function(s) as a reasonable accommodation and the production standard would

normally apply to the performance of that function. Applying such a production standard when

the essential function(s) is temporarily suspended would penalize the employee for using the

reasonable accommodation. The Commission agrees and has made this clarification in the

Interpretive Guidance in section 1636.3(h) under Ensuring That Employees Are Not Penalized

for Using Reasonable Accommodations.

One comment recommended clarifying that the definition of “production standards”

includes not penalizing an employee for lower “productivity,” “focus,” “availability,” or

“contributions” if the employee’s lower production in those areas is due to the employee’s

reasonable accommodation. The Commission agrees. For example, if, as a reasonable

accommodation, an employee is not working overtime, and “availability” or “contribution” is

measured by an employee’s working overtime, an employee should not be penalized in these

categories. This concept has been added to the Interpretive Guidance in section 1636.3(h) under

Ensuring That Employees Are Not Penalized for Using Reasonable Accommodations.

A few comments noted that in addition to potentially violating 42 U.S.C. 2000gg–1(5)

and 2000gg–2(f), penalizing an employee for using a reasonable accommodation could violate

42 U.S.C. 2000gg–1(1), because by doing so the covered entity would not be providing an

effective accommodation. The Commission agrees and has made this change in the Interpretive

Guidance in section 1636.3(h) under Ensuring That Employees Are Not Penalized for Using

Reasonable Accommodations.

Several comments suggested examples for this section focusing on no-fault attendance

policies and electronic productivity monitoring. The Commission added two examples to this

section and moved Example #30 from the NPRM (now Example #22) to this section with some

edits. The Commission also added language to the Interpretive Guidance in section 1636.3(h)

under Ensuring That Employees Are Not Penalized for Using Reasonable Accommodations

about the types of rules that may need to be considered.

One comment stated that allowing employers to not pay for break time was, in effect,

penalizing employees for taking those breaks. For the reasons explained in the section on leave,

the Commission is adhering to the approach under the ADA that whether or not leave or breaks

are paid depends on how the employer normally treats such time away from work and the

requirements of other laws.

A final set of comments on this issue requested clarification regarding whether specific

situations would be seen as penalizing an employee for using a reasonable accommodation.

Specifically, comments asked whether pay could be lowered or whether merit-based incentives

tied to the performance of the essential function(s) could be omitted if the employee was not

performing an essential function(s). One comment asked whether an employee could be required

to work extra time to make up for time spent on breaks.

Whether these situations regarding the temporary suspension of an essential function(s)

would be viewed as penalizing a qualified employee in violation of the PWFA depends on

certain factors. As stated in § 1636.4(a)(4), if a covered entity is choosing between

accommodations, it must select the one that provides the qualified employee with equal

employment opportunity, which includes no reduction in pay, advancement, or bonuses. If the

only accommodation available for the temporary suspension of the essential function(s) requires

the temporary reassignment of the qualified employee to a job that pays less, and the employer’s

practice in these situations is to lower the pay of employees temporarily assigned to such a

position, the employer may make the temporary reassignment and the PWFA does not prohibit

the employer from reducing the qualified employee’s pay. Both conditions must be true: (1) that

there is no other reasonable accommodation that does not pose an undue hardship and (2) that

this is the employer’s normal practice in these situations. Similarly, an employer could limit

bonuses related to the performance of an essential function(s) that has been temporarily

suspended if there is not another accommodation that provides equal employment opportunity,

and this is the employer’s normal practice in these situations.

For situations where the reasonable accommodation is additional breaks, a qualified

employee may be given the opportunity to make up the additional time and may choose to do so.

However, if making up the time renders the accommodation ineffective (for example, because

the breaks are due to fatigue), the employer may not require the qualified employee to do so.

Personal Use

The Commission received very limited comments on this section. The Commission has

made one minor change to the language in the Interpretive Guidance for this section (removing

reference to a “white noise machine”).

Particular Matters Regarding Leave as a Reasonable Accommodation

The Commission received numerous comments on its discussion of leave as a reasonable

accommodation, including requests for clarification regarding the purpose and length of leave as

a reasonable accommodation, as well as the application of the undue hardship standard to leave.

Other comments recommended changes to the rules for paid leave and the continuation of health

insurance while on leave. Some suggested that the PWFA explicitly provide coverage for

“extended leave.”

As set out in the NPRM, the Commission has long recognized the use of leave as a

potential reasonable accommodation under the ADA.

143

Leave as a reasonable accommodation

under the PWFA can be for any known limitation and includes leave for health care and

treatment of pregnancy, childbirth, and related medical conditions and recovery from pregnancy,

childbirth, and related medical conditions. The Commission declines to include the term

“extended leave” in the regulation or Interpretive Guidance. The amount of leave under the

PWFA depends on the employee and the known limitation and thus the term “extended” in this

context does not have a uniform definition. In response to a few comments, the Commission has

changed the language in § 1636.3(i)(3)(i) slightly to specifically provide that leave is available to

recover from any related medical condition. This was implied by the language in the NPRM,

which stated that leave for recovery was available and described an explicitly non-exhaustive list

of specific conditions. The Commission has also removed the word “receive” before “unpaid

leave” in § 1636.3(i)(3)(i) to be consistent with how it refers to unpaid leave.

Two groups of comments sought clarifications regarding leave and undue hardship. First,

some comments agreed with proposed § 1636.3(i)(3)(iv), which states that concerns about the

length, frequency, or unpredictable nature of leave are questions of undue hardship. However,

the comments also suggested that the Commission make clear that it is not merely the fact that

leave is long, frequent, or unpredictable that makes it an undue hardship. Rather, those factors

may be considered to the extent that they impact the established undue hardship considerations.

Thus, the fact that leave is unpredictable is not sufficient—standing alone—to make it an undue

hardship; rather, the employer would have to show the unpredictable leave caused significant

difficulty or expense on the operation of the business. The Commission agrees with these

comments. Because this concept sets out how undue hardship and leave should interact, the

Commission has determined that it is more appropriately discussed in the Interpretive Guidance

rather than the regulation itself. Section 1636.3(i)(3)(iv) has, therefore, been removed from the

143

88 FR 54728.

regulation and the issue is instead discussed in the Interpretive Guidance in section 1636.3(h)

under Particular Matters Regarding Leave as a Reasonable Accommodation.

The other set of comments regarding undue hardship stated that the mere fact that an

employee has taken leave should not be determinative in assessing undue hardship, but rather the

impact of that leave should be determined by using the undue hardship factors in § 1636.3(j)(2).

The Commission agrees and has added this information to the Interpretive Guidance in section

1636.3(h) under Particular Matters Regarding Leave as a Reasonable Accommodation because

proposed § 1636.3(i)(3)(iv) has been removed from the regulation.

Many comments recommended that, instead of looking to an employer’s policies for

individuals in similar situations, paid leave and continuation of health insurance should be

designated as possible accommodations under the PWFA. The Commission declines to make this

change. The current language in the Interpretive Guidance in section 1636.3(h) under Particular

Matters Regarding Leave as a Reasonable Accommodation is the same as under the ADA. The

PWFA at 42 U.S.C. 2000gg(7) provides that the term “reasonable accommodation” should have

the same meaning as in the ADA and the PWFA regulations. Thus, the Commission is

maintaining this definition.

Finally, a few comments recommended that a short amount of leave (e.g., 2 days) could

be a reasonable accommodation while the covered entity determines what other reasonable

accommodations are possible or during the interactive process. The response to this suggestion is

discussed in the preamble in section 1636.3(h) under Interim Reasonable Accommodations.

All Services and Programs

The Commission received very limited comments on this section. The Commission has

added language in the Interpretive Guidance in section 1636.3(h) under All Services and

Programs to clarify that the term “all services and programs” includes situations where a

qualified employee is traveling for work and may need, for example, accommodations at a

different work site.

Interim Reasonable Accommodations

The Commission received numerous comments regarding interim reasonable

accommodations, including requests to provide examples of when interim reasonable

accommodations are needed, recommendations that the provision be strengthened or made

mandatory, discussion of the provision of leave as an interim reasonable accommodation, and

suggestions of alternative definitions for “interim reasonable accommodations.”

Some comments provided helpful real-world examples of when interim reasonable

accommodations are needed. For example, one comment stated that after asking for an

accommodation, some pregnant employees are required to “continue to lift, push, and pull heavy

objects” and “drive when not fit to do so” in violation of the recommendations of their health

care providers as they wait for the decision about their reasonable accommodation from their

employer.

144

The same comment noted that some employees have been fired while waiting to

hear whether they can receive a reasonable accommodation because the employee cannot do the

job without one.

145

Another comment described a situation where an employee was put on leave

after asking for a reasonable accommodation because the request occurred on a Friday afternoon,

the employee was scheduled to work on Sunday, and the staff to address the provision of

reasonable accommodations were not available until the beginning of the next week.

146

comment from an organization noted that employees call their hotline after weeks of waiting for

a response on a request for an accommodation, and during that time “they must continue to

144

Comment EEOC-2023-0004-98479, The Center for WorkLife Law, at 11 (Oct. 10, 2023).

145

Id. at 2.

146

Comment EEOC-2023-0004-34728, Cloquet Area Fire District (Sept. 12, 2023).

perform duties that put their health or the health of their pregnancy at risk so they can earn a

paycheck and maintain their health insurance.”

147

The Commission understands the dilemma facing both employers and employees in

circumstances where the accommodation is needed immediately but cannot be provided

immediately. Requiring an employee to take leave (whether paid or unpaid) in this situation can

be harmful to the employee, either because it will require the employee to exhaust their paid

leave or because it will require an employee to go without income. In the face of these

reasonable reactions to what is, based on comments received, a common situation, the

Commission has added information regarding interim reasonable accommodations to the

Interpretive Guidance in section 1636.3(h) under Interim Reasonable Accommodations.

An interim reasonable accommodation can be used when there is a delay in providing the

reasonable accommodation. For example, an interim reasonable accommodation may be needed

when there is a sudden onset of a known limitation under the PWFA, including one that makes it

unsafe, risky, or dangerous to perform the normal tasks of the job, when the interactive process is

ongoing, when the parties are waiting for a piece of equipment, or when the employee is waiting

for the employer’s decision on the accommodation request.

Interim reasonable accommodations are not required. However, providing an interim

reasonable accommodation is a best practice under the PWFA and may help limit a covered

entity’s exposure to liability under 42 U.S.C. 2000gg–1(1) and § 1636.4(a)(1) (“An unnecessary

delay in providing a reasonable accommodation to the known limitations related to pregnancy,

childbirth, or related medical conditions of a qualified employee may result in a violation of the

PWFA if the delay constitutes a failure to provide a reasonable accommodation.”). Furthermore,

depending on the circumstances, requiring an employee to take leave as an interim reasonable

accommodation may violate 42 U.S.C. 2000gg–2(f). To help illustrate these principles, the

147

Comment EEOC-2023-0004-98479, The Center for WorkLife Law, at 2 (Oct. 10, 2023).

Commission has added additional examples regarding this issue to the Interpretive Guidance in

section 1636.3(h) under Interim Reasonable Accommodations.

Finally, in response to several comments, the Commission declines to define “interim

reasonable accommodation” differently than “reasonable accommodation.” The term “reasonable

accommodation” is already defined under the ADA and the PWFA.

148

The Commission declines

to create a new definition for such a similar term because it will create confusion.

1636.3(i) Reasonable Accommodation—Examples

The Commission received numerous requests for additional examples and suggested edits

for existing examples in this section. In response, the Commission has added a few examples to

explain specific points, using a variety of employees to illustrate that the PWFA applies to all

types of occupations and professions. Further, the Commission has made minor edits to the

language in the examples from the NPRM to standardize the language and format used in these

examples. For example, the Commission added “affected by, or arising out of” after “related to,”

added “pregnancy, childbirth, or related medical conditions,” and added that the adjustment or

change at work is “due to” the limitation.

The Commission did not receive comments related to § 1636.3(i)(1) from the NPRM.

Comments the Commission received regarding § 1636.3(i)(2) and (4) from the NPRM are

discussed below. Comments regarding § 1636.3(i)(3) from the NPRM (addressing leave as a

reasonable accommodation) are discussed supra in the preamble in section 1636.3(h) under

Particular Matters Regarding Leave as a Reasonable Accommodation. Comments received

regarding § 1636.3(i)(5) from the NPRM (regarding the suspension of an essential function(s) as

a reasonable accommodation) are discussed supra in the preamble in section 1636.3(f)(2)

148

29 CFR 1630.2(o) (ADA); § 1636.3(h) (PWFA).

Temporary Suspension of an Essential Function(s) and infra in the preamble in section

1636.3(j)(3) Undue Hardship—Temporary Suspension of an Essential Function(s).

1636.3(i)(2) List of Possible Accommodations

The Commission received a few comments recommending that in addition to listing

telework in § 1636.3(i)(2), the Commission include “remote work” and the ability to change

work sites and add that telework is a possible accommodation to avoid heightened health risks,

such as from communicable diseases. The Commission has added remote work and change in

worksites to the non-exhaustive list of possible accommodations in § 1636.3(i)(2) and to the

Interpretive Guidance. The Commission also deleted the word “additional” before “unpaid

leave” in § 1636.3(i)(2) because unpaid leave can be an accommodation whether or not it is

additional.

149

In the Interpretive Guidance in section 1636.3(i) Reasonable Accommodation—

Examples, the Commission added within the possible accommodation of “frequent breaks” the

situation where the regular location of the employee’s workplace makes nursing during work

hours a possibility because the child is within close proximity. This concept has also been added

to the regulation in § 1636.3(i)(4)(iii). It also is described, in more detail, infra in the preamble in

section 1636.3(i)(4) Examples of Reasonable Accommodations Related to Lactation in the

Commission’s response to the comments for § 1636.3(i)(4).

1636.3(i)(4) Examples of Reasonable Accommodations Related to Lactation

As an initial matter, some comments suggested the Commission include additional

conditions related to lactation, such as “difficulty with attachment” or “inability to pump milk,”

in the illustrative, non-exhaustive list of related medical conditions in § 1636.3(b). As explained

149

These changes are in addition to the change noted in the preamble in section 1636.3(h) under Alleviating

Increased Pain or Risk to Health Due to the Known Limitation.

elsewhere, the Commission has not added or deleted any terms from its non-exhaustive list. The

fact that these terms have not been added to the non-exhaustive list in § 1636.3(b) should not be

interpreted to deny coverage for those conditions.

With regard to § 1636.3(i)(4), many comments expressed concern over the wording used

in proposed § 1636.3(i)(4) which, in describing examples of accommodations related to

lactation, referenced the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP

Act) (Pub. L. 117-328, Div. KK, 136 Stat. 4459, 6093). Specifically, comments cautioned that

the existing language could inadvertently create the impression that the PUMP Act does not

require certain measures to ensure an adequate lactation space. To clarify this matter, the

Commission has incorporated the suggested edits, both removing the introductory phrase in §

1636.3(i)(4)(ii) (“Whether the space for lactation is provided under the PUMP Act or paragraph

(i)(4)(i) of this section”) and adding the phrase “shielded from view and free from intrusion,”

which is utilized in the PUMP Act, in an effort to emphasize the PUMP Act’s requirements and

what can be a reasonable accommodation under the PWFA. For the same reason, the

Commission has added the phrase “a place other than a bathroom,” also from the PUMP Act, to

§ 1636.3(i)(4)(ii).

Also related to the PUMP Act, some comments asserted that leave and breaks under the

PWFA could improperly exceed those provided under the PUMP Act. The Commission does not

agree. The PUMP Act provides covered employees with a reasonable break each time the

employee has a need to express milk, for up to 1 year after giving birth.

150

There is not a

150

29 U.S.C. 218d; U.S. Dep’t of Lab., Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at

Work (Jan. 2023), https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers; U.S. Dep’t of

Lab., Field Assistance Bulletin No. 2023-02: Enforcement Protections for Employees to Pump Breast Milk at Work

(May 17, 2023), https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf.

maximum number of breaks.

151

The frequency, duration, and timing of breaks can vary;

152

thus,

there is no defined number of breaks under the PUMP Act.

Another comment suggested that the Commission should not include accommodations

related to lactation because the PUMP Act provides for breaks to pump at work and should be

the exclusive mechanism for accommodations related to lactation. The Commission declines to

make this change. The PUMP Act applies to almost all employees covered under the Fair Labor

Standards Act of 1938, as amended (FLSA), 29 U.S.C. 201 et seq., with exemptions created for

specifically identified transportation-related jobs, and allows for employers with 50 or fewer

employees to seek an exemption based on undue hardship.

153

The PWFA applies to all

employers with 15 or more employees.

154

Congress passed both laws at the same time and

decided which entities would be covered; the Commission has a responsibility to follow the text

of the statute it has been charged with enforcing. Furthermore, an employer that is covered under

the PWFA but not under the PUMP Act does not automatically have to provide a reasonable

accommodation related to pumping; under the PWFA, the covered entity, regardless of size or

industry, does not have to provide the accommodation if it causes an undue hardship in the

specific situation. Additionally, while the PWFA provides that it does not “invalidate or limit the

powers, remedies, or procedures under any Federal law . . . that provides greater or equal

protection for individuals affected by pregnancy, childbirth, or related medical conditions,”

155

nothing in the PWFA prohibits it from providing more or additional protections.

Other comments suggested adding a new subsection, § 1636.3(i)(4)(iii), to specify

additional examples of reasonable accommodations related to lactation such as modifications

151

See supra note 150.

152

Id.

153

Id.

154

42 U.S.C. 2000gg(2)(A), (B)(1).

155

42 U.S.C. 2000gg–5(a)(1).

that would remove barriers to breastfeeding or pumping and avoid or alleviate lactation-related

health complications. The Commission does not find the proposed additions, which reiterate the

broader goals of the law, necessary in the list of accommodations. However, the Commission has

added language in a new paragraph (i)(4)(iv) to § 1636.3 to clarify that the types of

accommodations listed in this section are not the only ones available for lactation.

Some comments urged the Commission to make clear that it could be a violation of the

PWFA to “prohibit an employee from pumping milk in a space where they otherwise have

permission to work or to be present” unless it creates an undue hardship, and that coworker

discomfort about being in the same room while an employee is pumping is not a valid ground for

failing to provide an accommodation. The Commission is not making this addition. While it may

be that the situation described in this comment could be a reasonable accommodation, as set out

in § 1636.4(a)(4), an employer has the ultimate discretion in choosing between effective

accommodations. The Commission agrees that generally coworker discomfort does not establish

undue hardship and has added that point in the Interpretive Guidance in section 1636.3(j)(1)

Undue Hardship—In General.

156

Another comment suggested that the Commission explicitly state that certain

accommodations, such as telework, are not available for lactation. The Commission declines to

add which accommodations may cause an undue hardship in a specific situation, as such a

determination is fact-specific. Under the PWFA, as under the ADA, employers should conduct

an individualized assessment in response to each request for a reasonable accommodation.

Some comments recommended that the Commission also include nursing at work for

those circumstances where the employee works in close proximity to their child and can easily

nurse during the workday. The Commission agrees that in situations where the regular location

of the qualified employee’s workplace makes nursing during work hours a possibility because

the child is in close proximity, allowing breaks for nursing would be a possible reasonable

156

See 29 CFR part 1630, appendix, 1630.15(d).

accommodation (e.g., an employee who regularly works from home and has their child at home

or an employee whose child is at a nearby or onsite daycare center). The Commission has added

this to the regulation in § 1636.3(i)(4)(iii). The Commission cautions that this provision is

intended to address situations where the qualified employee and child are in close proximity in

the normal course of business. It is not intended to indicate that there is a right to create

proximity to nurse because of an employee’s preference. Of course, there may be known

limitations that would entitle a qualified employee to the creation of proximity as a reasonable

accommodation, absent undue hardship (e.g., a limitation that made pumping difficult or

unworkable).

Some comments sought reassurances that lactation accommodations also may include not

only breaks to pump, but also refrigeration to store milk. Section 1636.3(i)(4)(ii) specifically

references refrigeration for storing milk.

1636.3(j) Undue Hardship and 1636.3(j)(1) Undue Hardship—In General

The Commission did not receive comments regarding § 1636.3(j)(1), which defines

“undue hardship” using the language from the ADA. The Commission has not made changes to

the regulation on this point. Because undue hardship under the PWFA is defined as in the ADA,

the Commission has added information from the appendix to 29 CFR part 1630 (Interpretive

Guidance on Title I of the Americans With Disabilities Act) regarding undue hardship generally

to the PWFA Interpretive Guidance in section 1636.3(j)(1) Undue Hardship—In General so that

information is easily available to covered entities and employees.

1636.3(j)(2) Undue Hardship Factors

The Commission did not receive comments that disagreed with the Commission’s use of

the ADA’s undue hardship factors in the PWFA and has maintained the proposed language in the

final regulation.

The Commission received many comments regarding what facts should and should not be

considered when an employer is determining undue hardship.

First, the Commission received many comments discussing how previously granted

accommodations should affect the undue hardship analysis. Undue hardship is a broad concept in

terms of what may go into determining whether a particular reasonable accommodation imposes

a significant difficulty or expense. An employer may consider the current impact of cumulative

costs or burdens of accommodations that have already been granted to other employees or the

same employee when considering whether a new request for the same or similar accommodation

imposes an undue hardship. However, as the comments emphasized, and the Commission has

stated, “[g]eneralized conclusions will not suffice to support a claim of undue hardship. Instead,

undue hardship must be based on an individualized assessment of current circumstances that

show that a specific reasonable accommodation would cause significant difficulty or expense.”

157

Additionally, in some circumstances, rather than supporting a possible contention of an undue

hardship based on cumulative burden, the fact that an employer has provided the same or similar

accommodations in the past can weigh against an argument that granting it will impose an undue

hardship. Ultimately, whether a particular accommodation will impose an undue hardship for an

employer is determined on a case-by-case basis. This information has been added to the

Interpretive Guidance in section 1636.3(j) under Undue Hardship—Consideration of Prior or

Future Accommodations.

Second, several comments stated that an employer should not be able to rely solely on the

fact that an employee previously received an accommodation to assert undue hardship. The

Commission agrees and reiterates that although an employer may consider the impact of prior

accommodations granted to the employee currently seeking an accommodation, the mere fact

that an employee previously received an accommodation or, indeed, several accommodations,

does not establish that it would impose an undue hardship on the employer to grant a new

157

Enforcement Guidance on Reasonable Accommodation, supra note 111, text at n.113.

accommodation. This information has been added to the Interpretive Guidance in section

1636.3(j) under Undue Hardship—Consideration of Prior or Future Accommodations.

The Commission received several comments regarding whether or how other employees

should play a role in the undue hardship determination. The factors considered in the undue

hardship analysis under the PWFA mirror those under the ADA. Accordingly, an employer

cannot assert undue hardship based on employees’ fears or prejudices toward the individual’s

pregnancy, childbirth, or related medical condition, nor can an undue hardship defense be based

on the possibility that granting an accommodation would negatively impact the morale of other

employees. Employers, however, may be able to show undue hardship where the provision of an

accommodation would be unduly disruptive to other employees’ ability to work.

158

This

information has been added to the Interpretive Guidance in section 1636.3(j)(1) Undue

Hardship—In General.

A few comments requested more examples of when an employer does meet the burden of

showing undue hardship. An additional example has been added in the Interpretive Guidance in

section 1636.3(j)(2) Undue Hardship Factors and the examples from the proposed appendix

have been edited to include additional facts to help better explain why the situation creates an

undue hardship.

Undue Hardship and Safety

A few comments asked for clarification on which standard applies when an employee

requests an accommodation that the covered entity asserts would cause a safety risk to co-

158

See 29 CFR part 1630, appendix, 1630.15(d); Enforcement Guidance on Reasonable Accommodation, supra note

111, at text after n.117; cf. Groff v. DeJoy, 600 U.S. 447, 472–73 (2023) (opining that, under the Title VII undue

hardship standard, the employer may not justify refusal to accommodate based on other employees’ bias or

hostility).

workers or clients and whether there is a “direct threat” affirmative defense as in the ADA.

159

Congress did not include a “direct threat” defense in the PWFA. Thus, as explained in the

NPRM, the undue hardship analysis is the controlling framework for evaluating accommodation

requests by employees with limitations related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions, including with regard to considerations of safety.

160

Additionally, as stated in the NPRM, Title VII’s bona fide occupational qualification (BFOQ)

standard, rather than the PWFA’s undue hardship standard, applies to assertions by employers

that employees create a safety risk merely by being pregnant.

161

The Commission has included

this information in the Interpretive Guidance in section 1636.3(j) under Undue Hardship and

Safety.

1636.3(j)(3) Undue Hardship—Temporary Suspension of an Essential Function(s)

The Commission received numerous comments describing the potential difficulties that

employers may face in providing accommodations to employees who temporarily cannot

perform one or more essential functions, pointing to specialized functions in certain industries

and the burden of training employees. The Commission understands that in certain situations,

providing the accommodation of the temporary suspension of an essential function(s) may cause

an undue hardship. The difficulties addressed in the comments can be raised under the undue

hardship defense and are all part of the individualized assessment under the PWFA. The

Commission notes that employees seeking accommodations under the PWFA are not unlike

other employees who are temporarily unable to perform one or more essential functions for

159

See 42 U.S.C. 12111(3) (defining “direct threat”), 12113(b) (providing that the qualification standard can include

a condition that a person not pose a direct threat); 29 CFR 1630.2(r)(1) through (4) (outlining factors to be

considered in whether an employee poses a direct threat).

160

88 FR 54733.

161

Id.

various reasons and have received job modifications without a significant difficulty imposed on

business operations under similar circumstances.

The Commission received a comment suggesting the deletion of § 1636.3(j)(3)(iv)

(“Whether the covered entity has provided other employees in similar positions who are unable

to perform the essential function(s) of their position with temporary suspensions of essential

functions”) because, the comment asserted, it inappropriately imports a “comparative” approach

into the PWFA, which was enacted in part to address similar challenges experienced under Title

VII. In the Interpretive Guidance in section 1636.3(j)(3) Undue Hardship—Temporary

Suspension of an Essential Function(s), the Commission clarifies that under § 1636.3(j)(3)(iv) an

employer not having provided an accommodation previously does not tend to demonstrate that

doing so now, for the qualified employee with a known limitation, would cause an undue

hardship because making a change to a workplace procedure or rule can itself be a reasonable

accommodation. Instead, if this factor is relevant, it will tend to demonstrate the lack of an undue

hardship. For example, if an employer has consistently provided light duty assignments to those

who are temporarily unable to perform a certain essential function(s) for reasons other than

pregnancy, it will be difficult for the employer to prove that it is an undue hardship to provide a

light duty assignment to a qualified pregnant employee who is similarly unable to perform such

an essential function(s).

Finally, the Commission also has added to the Interpretive Guidance in section

1636.3(j)(3) Undue Hardship—Temporary Suspension of an Essential Function(s) that for the

undue hardship factor laid out in § 1636.3(j)(3)(ii) (whether there is work for the employee to

accomplish), the employer is not required to invent work for an employee.

1636.3(j)(4) Undue Hardship—Predictable Assessments

In response to the Commission’s directed question regarding the adoption of the

predictable assessment approach and whether the list of accommodations should be modified, a

large number of comments agreed with the method, and many suggested expanding the list.

Several comments specifically requested the addition of: modifications to uniforms or dress

codes; minor physical modifications to a workstation (e.g., a fan or a chair); permitting the use of

a workstation closer to a bathroom or lactation space, or farther away from environmental

hazards (e.g., heat, fumes, or toxins); use of a closer parking space in an employer-provided

parking facility; permitting eating or drinking at a workstation or nearby location where food or

drink is not usually permitted; rest breaks as needed; and providing personal protective

equipment (e.g., gloves, goggles, earplugs, hardhats, or masks). The Commission acknowledges

that several of the recommended additions also are common and simple, and employers should

be able to provide these, and, in fact, many accommodations under the PWFA, with little

difficulty. However, the Commission declines to make these additions to the list of predictable

assessments, because they are not the accommodations frequently mentioned in the legislative

history, some may not be easily applied across a broad category of jobs or workplaces, others

also are provided under other laws and employee protections,

162

and certain modifications are not

so commonly needed. This is not to say that such accommodations should not be granted when

requested, but simply that the Commission will not categorize them as the type of change that in

“virtually all cases” is a reasonable accommodation that does not create an undue hardship.

In seeking the inclusion of these accommodations as predictable assessments, some

comments asserted that other States and localities do not allow employers to assert undue

hardship for some of these specific modifications. The Commission acknowledges the

similarities between the PWFA and certain State laws, having referenced them in support of the

predictable assessment approach.

163

However, given the differences in State laws on this issue,

162

See, e.g., 29 CFR 1910.132(a); U.S. Dep’t of Lab., OSHA Personal Protective Equipment,

https://www.osha.gov/personal-protective-equipment/standards (last visited Mar. 18, 2024); U.S. Dep’t of Lab.,

OSHA Factsheet – Personal Protective Equipment, https://www.osha.gov/sites/default/files/publications/ppe-

factsheet.pdf (last visited Mar. 18, 2024).

163

88 FR 54785–86.

with some having a version of predictable assessments and others having none, the Commission

declines to expand the list of predictable assessments.

Some comments recommended that predictable assessments include, specifically, 16

health care appointments. The comments reasoned that this number represents the typical

recommended number of prenatal and postnatal care visits for an uncomplicated pregnancy. The

Commission is not adding this to the list of predictable assessments because the Commission

acknowledges that the timing of an appointment and the length of an appointment may differ for

each employee. The Commission also is concerned that setting a number of appointments could

erroneously imply that additional appointments would necessarily create an undue hardship.

However, the Commission emphasizes that employers should expect such requests, that such

requests are covered by the PWFA, and that granting such requests should be a straightforward

process, absent undue hardship.

Another comment suggested that 8 weeks of leave to recover from childbirth be added as

a predictable assessment, noting that despite the regularity of such a request, it is routinely

rejected by employers. The Commission recognizes it is predictable that pregnant employees will

need leave to recover from childbirth. However, given the differences in workplaces and the

possibility that the employee has access to leave through the FMLA, State law, or an employer’s

program, the Commission is not making this change.

Citing the number of pregnancies affected by gestational diabetes, one comment

recommended the addition of short breaks to monitor blood glucose levels. As with breaks to

hydrate, eat, or use the restroom, the Commission recognizes that these types of breaks should be

simple for employers to provide. However, because this is a less universal need and was not

repeatedly mentioned in the legislative history of the PWFA, the Commission does not believe it

is appropriate to include it in the list of predictable assessments.

The Commission also received numerous comments claiming that the identification of

predictable assessments violates the statutory text of the PWFA and is beyond the Commission’s

authority because, according to these comments, “predictable assessments” create a category of

“per se” reasonable accommodations. Comments also stated that predictable assessments

undercut the individualized assessment principles of the ADA, that there are differences among

various jobs and workplaces, and that Congress intended for individualized assessments to be

used. The Commission disagrees with these comments as they are misreading the NPRM. As

stated in the NPRM, “the adoption of predictable assessments . . . does not change the

requirement that, as under the regulation implementing the ADA, employers must conduct an

individualized assessment” and “[t]he identification of certain modifications as ‘predictable

assessments’ does not alter the definition of undue hardship or deprive a covered entity of the

opportunity to bring forward facts to demonstrate a proposed accommodation imposes an undue

hardship for its business under its own particular circumstances.”

164

In a similar vein, the Commission received comments stating that certain industries

would have a more difficult time providing the accommodations that the Commission has

identified as predictable assessments. As the Commission has stated, in those industries (as in

any others), an employer may assert that the requested accommodation causes an undue

hardship.

Some comments suggested the Commission include additional language in §

1636.3(j)(4)(i) to encompass circumstances where it may not be reasonable for the employee to

“carry” water. The Commission agrees and has added “keep water near” to § 1636.3(j)(4)(i). In

explaining the predictable assessments in the Interpretive Guidance, the Commission also has

clarified that, depending on the worksite, the employee may be able to eat or drink at their

workstation without taking a break.

In the regulation, the Commission has removed the following language from the

proposed rule (§ 1636.3(j)(4)): “Although a covered entity must assess on a case-by-case basis

whether a requested modification is a reasonable accommodation that would cause an undue

164

Id.

hardship . . .”; “[g]iven the simple and straightforward nature of these modifications, they will, as

a factual matter, virtually always be found to be reasonable accommodations that do not impose

significant difficulty or expense (i.e., undue hardship)”; and “[i]t should easily be concluded that

the following modifications will virtually always be reasonable accommodations that do not

impose an undue hardship.” While all of these sentences remain true, including this information

in the regulation is repetitive and unnecessary. These concepts have been moved to the

Interpretive Guidance in section 1636.3(j)(4) Undue Hardship—Predictable Assessments.

Finally, the Commission made a few minor changes to the language in § 1636.3(j)(4).

165

Formerly Proposed 1636.3(j)(5) Undue Hardship—Future Accommodations

Several comments recommended that the Commission clarify that the potential for future

accommodation requests from other employees cannot serve as a basis for failing to provide an

accommodation. The Commission agrees and has added language in the Interpretive Guidance to

the effect that an employer may not fail to provide an accommodation based on the possibility—

whether speculative or nearly certain—that it will have to provide the accommodation to other

employees in the future. Because this point is relevant to how a covered entity should consider

other accommodations, it has been added in the Interpretive Guidance in section 1636.3(j) under

Undue Hardship—Consideration of Prior or Future Accommodations, which also includes more

information about the consideration of prior and future accommodations. Accordingly, §

1636.3(j)(5) of the NPRM has been removed from the regulation.

1636.3(k) Interactive Process

The NPRM largely adopted the explanation of the interactive process in the regulation

implementing the ADA.

165

For example, for consistency the Commission added “as needed” to § 1636.3(j)(4)(ii) and (iii); removed “through

the workday” from § 1636.3(j)(4)(i); and added “to take” in § 1636.3(j)(4)(ii) and (iv).

The Commission has made one change in the regulatory language of § 1636.3(k). The

final rule states that the adjustment or change at work must be “due to the limitation.” This is

intended to clarify that there is a connection between the limitation and the requested adjustment

or change at work.

Numerous comments suggested that the Commission highlight that in many instances the

interactive process may occur in a very abbreviated form, given that most accommodations

employees are likely to seek under the PWFA are simple and easy to provide and have little to no

cost to covered entities, and because the temporary nature of pregnancy, childbirth, and related

medical conditions makes expediency in responding to and providing requested accommodations

crucial.

The Commission, in enforcing the ADA, has acknowledged that in many instances both

the need for an accommodation and the accommodation required will be obvious, leaving “little

or no need to engage in any discussion.”

166

In advising Federal agencies on creating their

disability reasonable accommodation procedures, the Commission recommends that they process

requests “in a manner that imposes the fewest burdens on the individuals . . . and permits the

most expeditious consideration and delivery of the reasonable accommodation.”

167

The same is

true for the PWFA. Where an employee has requested a simple and easy accommodation under

the PWFA, such as using a portable fan in the office, engaging in a lengthy back-and-forth would

be unwarranted.

Some comments recommended that the Commission modify its guidance for the

interactive process. The modifications, these comments explained, will better ensure that covered

entities recognize the differences in the interactive process under the PWFA and the ADA.

According to these comments, during the short time the PWFA has been in effect, covered

166

Enforcement Guidance on Reasonable Accommodation, supra note 111, at Question 5.

167

EEOC, Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of

Reasonable Accommodation, Question 7 (2000), https://www.eeoc.gov/laws/guidance/policy-guidance-executive-

order-13164-establishing-procedures-facilitate-provision.

entities have used their ADA policies to process pregnancy-related accommodation requests.

Some employers have purportedly required their employees to fill out lengthy forms and medical

certifications, which seek unnecessary information, leading to lengthy delays and denials.

168

The Commission agrees with the suggestions to emphasize that most requests for

accommodations under the PWFA can be provided quickly and typically will consist of nothing

more than brief conversations or email exchanges and has added language to this effect in the

Interpretive Guidance in section 1636.3(k) Interactive Process. However, the Commission

disagrees that this is meaningfully different than the ADA; under both statutes, the interactive

process should focus on finding an appropriate reasonable accommodation.

In order to further highlight the flexible, individualized nature of the interactive process,

in the Interpretive Guidance in section 1636.3(k) Interactive Process the Commission has added

information about how the process does not have to follow specific steps and has changed the

title of the possible steps in the interactive process in the Interpretive Guidance in section

1636.3(k) to Recommendations for an Interactive Process, while maintaining the substance from

the ADA guidance. The Commission also has added that information provided by the employee

in the interactive process does not need to be in any specific format, include specific words, or be

on a specific form.

The Commission received a few comments regarding the omission of the word “precise”

from the description of the interactive process in the proposed appendix. As set out in §

1636.3(a)(2), limitations may be modest, minor, and/or episodic. A limitation also may be a need

or a problem related to maintaining the health of the employee or the health of the pregnancy. A

process that tries to determine the “precise” limitation is in tension with the idea that limitations

can be minor impediments.

Another comment questioned whether the absence of the word “precise” limited whether

the covered entity could, for example, require information about how many breaks an employee

168

See Comment EEOC-2023-0004-98479, The Center for WorkLife Law, at 23 (Oct. 10, 2023).

needs and for how long. It does not. The Commission’s view is that under such circumstances,

the employer could ask such follow-up questions in order to craft an effective accommodation

that is not an undue hardship.

One comment suggested that the Commission clarify that to initiate the interactive

process the employee does not need to identify what the specific limitation is, but only that they

have such a limitation and need an adjustment or change at work. Section 1636.3(h)(2) describes

how an employee begins the reasonable accommodation process.

To ensure that employees and covered entities understand that any medical information

obtained during the interactive process under the PWFA is subject to the ADA’s confidentiality

rules and restrictions on disability-related inquiries, the Interpretive Guidance in section

1636.3(k) Interactive Process includes a brief overview of these topics, with further information

provided in the Interpretive Guidance in section 1636.7(a)(1) under Prohibition on Disability-

Related Inquiries and Medical Examinations and Protection of Medical Information. Of

particular relevance to the PWFA, that an employee is pregnant, has recently been pregnant, or

has a medical condition related to pregnancy or childbirth is medical information.

169

The ADA

requires that employers keep such information confidential and only disclose it within the

confines of the ADA’s limited disclosure rules.

170

Similarly, disclosing that an employee is

receiving or has requested a reasonable accommodation under the PWFA usually amounts to a

169

88 FR 54744.

170

42 U.S.C. 12112(d)(3)(B); 29 CFR 1630.14(b)(1), (c)(1), (d)(4); EEOC, Enforcement Guidance on Disability-

Related Inquiries and Medical Exams of Employees Under the ADA, at text accompanying nn.9–10 (2000)

[hereinafter Enforcement Guidance on Disability-Related Inquiries],

http://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-

employees (“The ADA requires employers to treat any medical information obtained from a disability-related

inquiry or medical examination . . . as well as any medical information voluntarily disclosed by an employee, as a

confidential medical record. Employers may share such information only in limited circumstances with supervisors,

managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”);

EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, at text

accompanying n.6 (1995) [hereinafter Enforcement Guidance: Preemployment Disability-Related Questions],

https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-

medical (“Medical information must be kept confidential.”).

disclosure that the employee is pregnant, has recently been pregnant, or has a related medical

condition.

171

Many comments described the difficulty pregnant employees may experience obtaining

appointments with health care providers, especially early in pregnancy. To help address this

concern, the Commission has added language to the Interpretive Guidance in section 1636.3(k)

under Engaging in the Interactive Process

172

to the effect that when a covered entity is permitted

to seek supporting documentation from a health care provider under the parameters outlined in §

1636.3(l), the covered entity should be aware that it may take time for the employee to find a

health care provider and provide the documentation. Delay caused by the difficulty faced by an

employee in obtaining information from a health care provider in these circumstances should not

be considered a withdrawal from or refusal to participate in the interactive process. If there is

such a delay, an employer should consider providing an interim reasonable accommodation.

Several comments requested that the Commission specifically address the need for

reasonable accommodations in unforeseen, urgent, emergency situations when the employee has

not already requested a reasonable accommodation. One comment described instances where

employees experienced bleeding or passed out due to their pregnancies and had to immediately

leave their worksites to obtain emergency care, only to return to work and find they were

charged with violating the covered entities’ attendance policy. In response, the Commission has

added information and an example in the Interpretive Guidance in section 1636.3(k) under

Engaging in the Interactive Process. This example involves a situation where the employee, who

has not asked for an accommodation or informed their employer that they are pregnant,

experiences an emergency that is a physical or mental condition related to, affected by, or arising

out of pregnancy, childbirth, or related medical conditions. The example explains that by

informing the employer that they are experiencing an emergency related to pregnancy, childbirth,

171

88 FR 54744.

172

In the proposed appendix, this heading was entitled “Failure to Engage in Interactive Process.” 88 FR 54787.

or related medical conditions and need leave immediately, the employee has made a request for a

reasonable accommodation. The example goes on to explain that, if it is later determined that the

employee is entitled to a reasonable accommodation, the employer should not penalize the

employee because the emergency required a pause in the interactive process.

In the Interpretive Guidance, the information regarding delay and emergencies explained

in the preceding paragraphs has been added to section 1636.3(k) under the heading formerly

titled Failure to Engage in the Interactive Process. To reflect these additions, the title of that

heading has been changed to Engaging in the Interactive Process.

One comment asked that the Commission clarify whether the “interactive process”

requirements can be met by using software. There are no required steps or methodology for the

interactive process; thus, the Commission has not taken a position on whether such a system will

meet the requirements of the interactive process. The Commission does remind covered entities

that they are responsible for their part of the interactive process, regardless of how they meet that

obligation.

A comment requested that the Commission oversee the interactive process between

covered entities and employees, suggesting a system of monitoring and evaluation. While the

Commission issues guidance, provides technical assistance, and engages in litigation, the

Commission is unable to offer the level of monitoring proposed. Generally, the employee and

employer are in the best position to understand the limitations, affected job functions, and

possible accommodations involved in the interactive process.

Finally, the Commission has included additional examples in the Interpretive Guidance in

section 1636.3(k) Interactive Process to illustrate how accommodations may be granted through

the interactive process.

1636.3(l) Limits on Supporting Documentation

The Commission received numerous comments about the NPRM’s approach to

supporting documentation and the extent to which the final regulation should permit covered

entities to seek such documentation in support of an employee’s request for a reasonable

accommodation under the PWFA. The proposed rule provided that a covered entity could require

supporting documentation that is reasonable under the circumstances for the covered entity to

determine whether to grant the accommodation. Further, the rule provided that when it was

reasonable under the circumstances, the employer could only require reasonable documentation.

1636.3(l)(1) Seeking Supporting Documentation Only When Reasonable Under the

Circumstances

Comments and Response to Comments That Were Generally Supportive or Generally

Unsupportive of the Commission’s Approach

The Commission received many comments that were generally supportive of the

approach to documentation set forth in the proposed rule, although most had suggestions for

further limiting the ability of employers to seek supporting documentation.

Many comments agreed with the Commission that employees who are pregnant may

experience limitations and, therefore, require accommodations before they have had any medical

appointments, and that it may be difficult for a pregnant employee to obtain an immediate

appointment with a health care provider early in a pregnancy, especially for those living in

certain regions of the country where there are limited resources for maternal health. These and

other comments also provided numerous additional reasons for limiting the amount of

documentation that covered entities may seek under the PWFA, including: the burden and

corresponding reduction in quality of care that administrative duties (such as paperwork) place

on health care professionals; the possibility that the notes doctors provide are “overprotective”

and result in a person who wants to work being placed on leave; the costs in time and money

employees face when they must obtain medical documentation;

173

the concern that a doctor may

feel uncomfortable certifying that a condition is completely due to pregnancy;

174

the fact that

these burdens may deter employees who need accommodations from asking for them; and the

possibility that employers will not maintain the confidentiality of medical documentation they

obtain, among other reasons. These comments agreed with the overall structure of the proposed

rule’s documentation provision but also offered suggestions for further limiting the

circumstances in which documentation could be sought, as explained in more detail below. Some

comments, generally supportive of the proposed rule’s approach, urged the Commission to

ensure that there is a broad understanding among covered entities and employees of the PWFA’s

rules limiting the ability of covered entities to seek supporting documentation.

Other comments, however, were generally unsupportive of the proposed rule’s approach,

arguing that before deciding whether to grant requests for reasonable accommodations,

employers need to be able to seek supporting documentation beyond what the proposed rule

would allow. Such comments expressed concern about employee fraud, including employees

who might seek accommodations with no relation to a PWFA-covered limitation.

175

Others said

that the proposed rule did not allow employers to request sufficient justification for a requested

accommodation and that this aspect of the proposal violated the spirit of mutually beneficial

cooperation that the PWFA represents. Concerns about vague requests, employees who did not

173

Some comments that were generally sympathetic to the idea that it is difficult for pregnant employees to obtain

supporting documentation in some circumstances argued that rather than limiting employers’ ability to seek

supporting documentation in those circumstances, employers could provide interim accommodations while waiting

for supporting documentation. The Commission agrees providing interim reasonable accommodations is a

possibility and has expanded the section regarding interim reasonable accommodations in the Interpretive Guidance

in section 1636.3(h) under Interim Reasonable Accommodations, although providing an interim reasonable

accommodation is not required.

174

This concern is misplaced, as the PWFA requires accommodation for physical or mental conditions “related to,

affected by, or arising out of pregnancy, childbirth, or related medical conditions” and not that the physical or

mental condition solely be due to pregnancy, childbirth, or related medical conditions. 42 U.S.C. 2000gg(4); see

also section 1636.3(a)(2) under Related to, Affected by, or Arising Out of in the Interpretive Guidance.

175

Another comment noted, however, that the fact that covered entities are permitted to request supporting

documentation “when necessary” to determine if a limitation is “related to, affected by, or arising out of” pregnancy

overcame any concerns that the employer will have to provide an accommodation for a condition not related to a

PWFA limitation.

know what sort of accommodation they needed, and the absence of a concrete rule also were

mentioned in these comments.

In drafting the final rule on supporting documentation, the Commission took these

comments into consideration, as well as the more specific suggestions discussed below.

Comments and Response to Comments Suggesting That the PWFA’s Rule on Supporting

Documentation Should Follow the ADA

Some comments that generally were unsupportive of the proposed rule’s approach to

supporting documentation argued that the PWFA regulation should follow the approach

employers use under the ADA. Some argued that this approach should be followed because it

provides a familiar bright line that is more useful to employers than a general “reasonableness”

standard. These comments also asserted that difficulties pregnant employees have obtaining

documentation are faced equally by those with disabilities and, therefore, should not be a factor

in the drafting of a final rule.

The Commission disagrees with the comments that argued that it automatically can or

should apply the ADA’s approach to supporting documentation under the PWFA in all

circumstances. The ADA’s statutory restrictions on disability-related inquiries apply to all

disability-related inquiries, whether or not an employee has a disability,

176

including when such

inquiries are made in response to a request for an accommodation under the PWFA, as discussed

in detail in the Interpretive Guidance in section 1636.7(a)(1) under Prohibition on Disability-

Related Inquiries and Medical Examinations and Protection of Medical Information. These

restrictions limit an employer’s ability to ask employees questions that are likely to elicit

176

42 U.S.C. 12112(d). See also Enforcement Guidance on Disability-Related Inquiries, supra note 170 (“The

ADA’s restrictions on inquiries and examinations apply to all employees, not just those with disabilities.”).

information about a disability to situations when doing so is job-related and consistent with

business necessity.

177

The PWFA does not have a similar statutory provision regarding pregnancy-related

inquiries.

178

However, the PWFA does make it unlawful for a covered entity not to make

reasonable accommodation to the known limitations related to the pregnancy, childbirth, or

related medical conditions of a qualified employee, unless such covered entity can demonstrate

that the accommodation would impose an undue hardship.

179

Adopting a reasonableness standard

for when employers can seek supporting documentation to determine coverage and the need for

an accommodation ensures that covered entities can meet the statute’s requirements without

overly broad documentation requests that could result in the failure to provide accommodations

that should be granted or could lead to claims of retaliation. Additionally, the Commission

concludes that it is critical to limit inquiries and the supporting documentation that a covered

entity can seek when an employee requests an accommodation under the PWFA so that covered

entities do not obtain sensitive information that they do not need when making employment

decisions and employees are not dissuaded from asking for accommodations out of concern that

such requests will lead to probing questions unrelated to their ability to do the job. Thus, the

Commission has retained the reasonableness standard from the proposed rule.

The Commission notes that the rule it is adopting about seeking supporting

documentation for the PWFA is similar to the Commission’s guidance regarding the ADA in

some ways. The most important similarity is that a covered entity is not required to seek

supporting documentation from an employee who requests an accommodation under the PWFA,

177

42 U.S.C. 12112(d).

178

However, in the context of Title VII, the Commission has stated, “Because Title VII prohibits discrimination

based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become

pregnant. The EEOC will generally regard such an inquiry as evidence of pregnancy discrimination where the

employer subsequently makes an unfavorable job decision affecting a pregnant worker.” Enforcement Guidance on

Pregnancy Discrimination, supra note 31, at (I)(A)(3)(b). And, as stated, supra, the ADA’s restrictions on

disability-related inquiries apply to individuals seeking accommodations under the PWFA.

179

42 U.S.C. 2000gg–1(1).

as is true under the ADA. For example, if an employee, early in their pregnancy, informs the

employer that they are pregnant, have morning sickness, and need a later start time, the employer

and the employee can discuss what type of schedule changes are needed and implement them.

Because of the difficulty employees may face in finding care, the fact that many health care

providers will not see employees until later in their pregnancies,

180

and the fact that many

accommodations under the PWFA will be simple and temporary, the Commission encourages

employers to engage in this simple type of interactive process to determine appropriate

accommodations under the PWFA.

The final PWFA rule contains five examples of when it is not reasonable under the

circumstances to seek supporting documentation. Two of these examples build on the

Commission’s ADA policy guidance (§ 1636.3(l)(1)(i) (obvious) and (ii) (known)); and a third

example is based on disparate treatment principles that apply equally under the ADA (§

1636.3(l)(1)(v)) (it would not be reasonable under the circumstances to seek documentation

when the requested accommodation is available to employees without PWFA limitations

pursuant to a covered entity’s policies or practices without submitting supporting

documentation.). The two other examples involve pregnancy and predictable assessments, and

lactation, nursing, and pumping. They are described in detail below.

Reorganization of § 1636.3(l) and Changes in the Language Describing the Reasonableness

Standard

The Commission has made several changes in the regulation for § 1636.3(l).

First, the Commission has changed the language in § 1636.3(l)(1) regarding when it is

reasonable under the circumstances from “reasonable under the circumstances for the covered

entity to determine whether to grant the accommodation” to “reasonable under the circumstances

for the covered entity to determine whether the employee has a physical or mental condition

180

88 FR 54736, 54787.

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a

limitation) and needs an adjustment or change at work due to the limitation.” The Commission

believes that, given the context, “to determine whether to grant the accommodation” would be

understood to mean “to determine whether the employee has a physical or mental condition

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a

limitation) and needs an adjustment or change at work due to the limitation.” However, the

Commission also recognizes that there may be other factors involved in an effort “to determine

whether to grant the accommodation” that do not involve supporting documentation. Thus, the

Commission has changed the language to be more precise.

Second, throughout the regulation and the Interpretive Guidance, references to an

employer “requiring” documentation in the proposed rule have been changed to an employer

“seeking” documentation. This change was made to account for situations where an employer’s

request for supporting documentation is effectively a requirement even if it does not contain the

word “requirement.”

Third, the Commission has moved the information regarding confidentiality from §

1636.3(l)(4) of the proposed regulation to section 1636.7(a)(1) under Prohibition on Disability-

Related Inquiries and Medical Examinations and Protection of Medical Information in the

Interpretive Guidance. The Commission has made this change because the prohibition on

disability-related inquiries and the confidentiality provisions that apply to medical information

obtained under the PWFA arise from the ADA, not the PWFA, and therefore are enforceable

under the ADA, not the PWFA. Accordingly, they are more appropriately addressed in the

Interpretive Guidance’s discussion of the application of the ADA’s rules and exceptions

regarding the confidentiality of medical information than in the PWFA regulation itself.

Fourth, the Commission has moved information regarding how documentation requests

that violate § 1636.3(l) also may be a violation of 42 U.S.C. 2000gg–2(f) (§ 1636.5(f)

(prohibition on retaliation and coercion)) to the Interpretive Guidance in section 1636.5(f) under

Possible Violations of 42 U.S.C. 2000gg–2(f) (1636.5(f)) Based on Seeking Supporting

Documentation During the Reasonable Accommodation Process and Disclosure of Medical

Information.

Fifth, the final rule contains a new paragraph (new paragraph (l)(4) of § 1636.3)

regarding self-confirmation for the purposes of § 1636.3(l)(1)(i), (iii), and (iv). The NPRM stated

that, in certain circumstances, an employer could not request documentation to confirm

pregnancy when an employee “states or confirms” that they are pregnant.

181

Some comments

discussed the question of what kind of confirmation should be allowed and, in particular, when

covered entities should be permitted to seek documentation to confirm that an employee is

pregnant. Some argued that self-attestation should always suffice, others argued that covered

entities should be allowed to seek supporting documentation confirming pregnancy unless the

pregnancy is “obvious,” while still others discussed the types of tests that should or should not be

allowed to confirm pregnancy. As explained in detail below, the final rule provides two

circumstances in which covered entities must accept self-confirmation of pregnancy: when the

pregnancy is obvious, or when the request for a change at work involves one of the modifications

listed under § 1636.3(j)(4) due to pregnancy. As explained in the Interpretive Guidance in

section 1636.3(l)(2) Reasonable Documentation, when the covered entity is permitted to seek

confirmation of pregnancy other than through self-confirmation, it may not require a specific test

or method.

Additionally, the Commission has included new subsections in the Interpretive Guidance:

in section 1636.3(l) under Interaction Between the PWFA and the ADA; and in section

1636.7(a)(1) under The PWFA and the ADA.

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88 FR 54737, 54788 (“For example, when an obviously pregnant worker states or confirms they are pregnant and

asks for a different size uniform . . . the employer may not require supporting documentation.”).

Comments and Response to Comments Regarding Examples of When It Is Not Reasonable To

Seek Supporting Documentation

As noted above, the NPRM explained that if an employer decided to seek supporting

documentation, it was only permitted to do so if it was reasonable under the circumstances in

order for the employer to determine whether to grant the accommodation. The NPRM provided

four examples of when it is not reasonable under the circumstances.

The Commission received comments seeking additional factual scenarios illustrating

circumstances when it would, as well as when it would not, be reasonable under the

circumstances to seek documentation. Some of these comments provided suggestions for desired

examples. The Commission agrees that further illustrations would be useful and therefore has

added further illustrations to the Interpretive Guidance in section 1636.3(l)(1) Seeking

Supporting Documentation Only When Reasonable Under the Circumstances.

Other comments suggested that the final rule should state that covered entities that seek

documentation must provide paid leave for the employee to obtain the documentation, as well as

cover any costs incurred to obtain it. To the extent that these comments intended to suggest that

it would not be reasonable under the circumstances to seek documentation unless the covered

entity provides paid leave for the employee to obtain the documentation and covers any costs

incurred, the Commission disagrees and declines to adopt this suggestion.

Not Reasonable To Seek Supporting Documentation—Obvious

The first example in the proposed rule of when it would not be reasonable under the

circumstances to seek supporting documentation is when: (1) the known limitation and need for

reasonable accommodation are obvious; and (2) the employee confirms the obvious limitation

and need for reasonable accommodation through self-attestation. This example is retained in the

final rule, although the language has been modified to reflect changes in the description of what

documentation may be sought.

Thus, the language in the final rule regarding this example has been changed from “when

the known limitation and the need for reasonable accommodation are obvious and the employee

confirms the obvious limitation and need for reasonable accommodation through self-attestation”

to “[w]hen the physical or mental condition related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions (a limitation) and the adjustment or change at work

needed due to the limitation are obvious, and the employee provides self-confirmation as defined

in paragraph (l)(4) of this section.” The Interpretive Guidance for this section, in section

1636.3(l)(1)(i)—Obvious, has generally remained the same with some minor language edits.

Many comments expressed concerns with the meaning of the word “obvious.” Comments

noted, among other things, that a rule that envisions employers making decisions based on

whether someone is “obviously” pregnant will lead employers to subject employees’ bodies to

invasive scrutiny. This, in turn, might lead employers to unilaterally impose restrictions based on

gendered and racialized stereotypes about what pregnant and postpartum people need. Other

comments argued that it is irrelevant whether a pregnancy is “obvious” because if the individual

in question is seeking an accommodation for which the employer is permitted to seek

documentation, that documentation will automatically include a confirmation that the person is

pregnant. Another comment pointed out that it will be very difficult for covered entities to

determine if a pregnancy is “obvious,” and that attempting to do so might expose employers to

liability if a manager judges incorrectly.

In response to these comments, the Commission first notes that the idea of prohibiting

requests for supporting documentation when the condition is “obvious” is similar to the

Commission’s guidance regarding the ADA although, unlike the ADA, the PWFA regulation

includes a self-confirmation requirement. The Commission also has used the concept of

“obvious” previously regarding pregnancy discrimination.

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An “obvious” pregnancy is one

182

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(1)(a) (discussing the

“obviousness” of pregnancy and how that can play into a discrimination claim).

where the pregnancy is showing, and onlookers easily notice by observation. Importantly, as

several comments noted, not everyone who is pregnant looks the same.

Moreover, the Commission concludes that concerns about this provision encouraging

employers to force employees to accept unnecessary accommodations based on stereotypes are

misplaced. Whether a pregnancy is obvious will only be relevant after an employee requests a

reasonable accommodation. Other parts of the PWFA prohibit employers from requiring

employees to accept reasonable accommodations.

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The requirement that obviously pregnant employees must self-confirm that they are

pregnant (new § 1636.3(l)(4)) is intended to address the concerns expressed by comments about

managers being uncertain whether someone is pregnant. Although there may be circumstances in

which a pregnant employee asks for an accommodation and considers themselves to be

“obviously” pregnant, but the employer disagrees and requests supporting documentation, the

Commission believes such cases will be rare. Finally, although the Commission understands

concerns about an employer’s possible scrutiny of an employee’s body, it is impractical to

suggest that an employer in such circumstances should not consider the obvious physical

condition of the employee requesting accommodation and instead seek documentation.

Some comments also requested more details about and examples of what would be

considered an “obvious” limitation and/or an “obvious” need for accommodation (for example,

asking when a limitation would be obvious based on something other than physical appearance).

These comments suggested, for instance, that if someone self-attested to pregnancy and then was

seen frequently vomiting, the limitation (vomiting due to pregnancy) should be considered

obvious, and no documentation would be needed because vomiting is a common symptom of

pregnancy. Under these circumstances, the comments suggested, the need for an accommodation

of a temporary relocation of a workstation closer to the bathroom also would be obvious. These

comments recommended that the Commission, in the final rule, identify the following conditions

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42 U.S.C. 2000gg–1(2); 29 CFR 1636.4(b).

as “obvious”: morning sickness, edema, fatigue, back pain, medical visits, lifting restrictions, and

time to recover from childbirth, among others. Comments additionally recommended that the

final rule make clear that the need for accommodation is obvious when a pregnant employee

requests removal from exposure to certain harmful chemicals or infectious diseases.

Under the final rule, the first example of when it is not reasonable under the

circumstances for an employer to seek supporting documentation is when the employee’s

limitation (physical or mental condition related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions) and the adjustment or change at work that is needed

due to the limitation are obvious and the employee confirms the limitation and the adjustment or

change at work needed due to the limitation. As stated in the Interpretive Guidance in section

1636.3(l)(1)(i)—Obvious, the Commission expects this example will usually apply when the

employee is obviously pregnant. “Obvious” means that the condition is apparent without being

mentioned. In terms of pregnancy itself, this may depend on physical appearance, i.e., whether

the pregnancy is “showing.”

In response to comments suggesting that additional circumstances will always fall within

the parameters of “obvious” limitations and/or “obvious” accommodations, the Commission

does not have enough information to agree with those comments maintaining, for example, that

there should be a nationwide standard establishing that it always is obvious that all pregnant

employees need accommodations due to lifting restrictions, avoiding certain chemicals, or back

pain, such that it would never be reasonable for employers to seek supporting documentation

when someone requests accommodation due to these limitations. Although there may be

circumstances under which these and other limitations or accommodations are obvious, when

accompanied by self-confirmation, the Commission does not view these sorts of limitations or

types of accommodations as “obvious” in the way that it is obvious that a pregnant employee late

in pregnancy needs a larger uniform or properly fitting safety equipment. Thus, the Commission

did not make any changes to the proposed rule based on comments concerning limitations or

accommodations that should be considered “obvious.”

Not Reasonable To Seek Supporting Documentation—Known

Although fewer comments mentioned the proposed rule’s second example of when it

would not be reasonable for a covered entity to seek documentation in support of a request for

PWFA accommodation, some did suggest that the term “sufficient information” was too vague

and asked if “information” was intended to encompass something broader than “documentation.”

This example is intended to prevent covered entities from seeking supporting

documentation unnecessarily. In the NPRM, the Commission explained that information is

sufficient if it substantiates that the employee has a known PWFA limitation and needs a change

or adjustment at work. The word “information” was intentionally used to make clear that it does

not have to be documentation from a health care provider but can be information provided by the

employee or their representative, such as a self-confirmation of pregnancy, when permitted, or

confirmation from the employee that the need, explained by previously submitted

documentation, has occurred again. The example provided in one of the comments illustrates the

need for this provision—in this example, an employee who had already provided documentation

from her health care provider was required to provide a new doctor’s note for each absence due

to morning sickness, an impossible requirement given that no one would be able to see a doctor

every time they were too nauseous to go to work. If an employee already has provided

documentation that because of morning sickness they need to use intermittent leave as necessary

for the next 2 months, the covered entity may not seek new documentation from a health care

provider every time the employee needs to use leave due to morning sickness.

To ensure that this example is not misunderstood to be broader than intended, the

Interpretive Guidance makes clear in section 1636.3(l)(1)(ii) —Known that when it is otherwise

reasonable under the circumstances to seek supporting documentation, an employer is not

prohibited from doing so simply because the employee has stated that they have a PWFA

limitation and need an adjustment or change at work.

The language in the final rule about this example has been changed to follow the

language in the final rule regarding the supporting documentation that may be sought and to

clarify that the example applies whenever the employer has sufficient information to determine

that the employee has a PWFA limitation and needs an adjustment or change at work, regardless

of how the employer obtains that information. Thus, the Commission changed “When the

employee or applicant already has provided the covered entity with sufficient information to

substantiate that the employee or applicant has a known limitation and that a change or

adjustment at work is needed;” to “When the employer already has sufficient information to

determine whether the employee has a physical or mental condition related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an

adjustment or change at work due to the limitation.” Additionally in the Interpretive Guidance

for this section, the Commission has added how this provision may apply to episodic conditions.

Not Reasonable To Seek Supporting Documentation—Predictable Assessments

The proposed rule provided a third example of when it is not reasonable for an employer

to seek supporting documentation: when an employee at any time during their pregnancy states

or confirms that they are pregnant and seeks one of the modifications described as “predictable

assessments” under § 1636.3(j)(4)(i) through (iv).

Many comments suggested that this example be expanded to include modifications

beyond those recognized as “predictable assessments” under § 1636.3(j)(4)(i) through (iv). Some

of these comments argued that the list should be expanded because the principles underlying

whether a particular accommodation warrants medical certification differ from concerns related

to undue hardship. The Commission declines to expand this example. The recognized

“predictable assessments” reflect a small set of simple, inexpensive, commonly sought

accommodations that are widely known to be needed during an uncomplicated pregnancy, and

where documentation would not be easily obtained or necessary. In the Commission’s view, the

examples suggested for the possible expansion of the rule do not fall within this same category,

although the Commission agrees that in some situations the modifications offered in the

comments would not require supporting documentation and reminds employers that they are not

obligated to seek supporting documentation.

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Moreover, because the proposed list of

accommodations that fit within this example are limited to modifications already singled out in §

1636.3(j)(4), the example is clear and easy to apply.

One comment, focused more on the proposed regulation’s discussion of predictable

assessments in an undue hardship context, noted that employers should be able to seek

documentation to confirm that the requested “predictable assessments” modifications are needed

due to pregnancy, as opposed to some other reason. The Commission agrees that this example is

limited to pregnancy. Thus, under the final rule, the employer is not permitted to seek supporting

documentation if the employee asks for one of these modifications due to a physical or mental

condition related to, affected by, or arising out of pregnancy (a limitation) and provides self-

confirmation as defined in § 1636.3(l)(4).

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Not Reasonable To Seek Supporting Documentation—Lactation

The fourth example in the proposed rule regarding when it is not reasonable under the

circumstances to seek documentation concerns lactation and pumping. A few comments noted

that, as written, the example suggests it is not reasonable to seek additional supporting

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The comments suggested the following additions: time off, up to 8 weeks (or 12 weeks in some comments) to

recover from childbirth; time off to attend up to 16 health care appointments while pregnant; flexible scheduling or

remote work for nausea or bleeding; modifications to uniforms or dress codes; minor physical modifications to the

workstation; relocation of the workstation; reprieve from lifting over 20 pounds; and access to a closer parking

space, among others.

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A minor edit has been made to the final rule to correctly identify the items listed in § 1636.3(j)(4) as

“modifications” and not “reasonable accommodations.” As noted in the rule, these modifications will virtually

always be determined to be reasonable accommodations that do not impose an undue hardship.

documentation, as opposed to making clear that no supporting documentation may be requested.

The Commission has reworded this example for purposes of clarification, in the final rule, as

explained below.

Another comment noted that the example as written was overly broad because it prohibits

an employer from asking for documentation anytime the requested accommodation relates to

lactation. The comment noted that if, for example, an individual requests to work from home

while breastfeeding or requests accommodations due to anxiety over a child’s difficulties

learning to bottle feed, the employer would be prohibited from seeking supporting

documentation regarding such requested accommodations.

The Commission agrees that the language in the proposed rule could be interpreted too

broadly. The final rule makes clear that it is not reasonable under the circumstances for a covered

entity to seek supporting documentation in response to a request for reasonable accommodations

involving lactation and a time and/or place to pump at work or any other modification related to

pumping at work. In response to comments raising questions regarding nursing during work

hours, the final rule also explains that when the regular location of the employee’s workplace

makes nursing during work hours a possibility because the child is in close proximity, it would

not be reasonable to seek supporting documentation in response to a request for reasonable

accommodations involving a time to nurse during work hours.

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This example does not extend,

however, to accommodations involving lactation beyond these modifications. Thus, for example,

if a lactating employee requests full-time remote work due to a condition that makes pumping

difficult, it may be reasonable for the covered entity to seek reasonable documentation about the

limitation and need for remote work, although it is not required to do so.

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“Nursing during work hours” is where the regular location of the employee’s workplace makes nursing during

work hours a possibility because the child is in close proximity and could include, for example, when an employee

who always teleworks from home has their child at home and takes a break to nurse the child, or when an employee

takes a break to travel to a nearby or onsite daycare center to nurse.

The final rule is, therefore, modified to clarify that when the reasonable accommodation

is related to a time and/or place to pump, or any other modification related to pumping at work,

and the employee has provided self-confirmation as defined in paragraph (l)(4), it is not

reasonable to request supporting documentation. Likewise, it would not be reasonable to seek

documentation when the accommodation is related to a time to nurse when the regular location

of the employee’s workplace makes nursing during work hours a possibility because the child is

in close proximity and the employee has provided self-confirmation of the fact, as defined in

paragraph (l)(4). The Commission has added information regarding nursing during work hours in

the Interpretive Guidance in section 1636.3(l)(1)(iv)—Lactation and made other minor

modifications.

Not Reasonable To Seek Supporting Documentation—Employer’s Own Policies or Practices

(New § 1636.3(l)(1)(v))

The final rule contains a new example of when it is not reasonable under the

circumstances for the employer to seek supporting documentation. New § 1636.3(l)(1)(v) states

that seeking supporting documentation is not reasonable under the circumstances when the

requested modification is one that employees without known limitations under the PWFA would

receive pursuant to the employer’s policy or practice without submitting supporting

documentation. For example, if an employer has a policy or practice of only seeking supporting

documentation for the use of leave if the leave is for 3 or more consecutive days, it would not be

reasonable for the employer to seek supporting documentation from someone who needs leave

due to a known limitation under the PWFA when they request leave for 2 or fewer days.

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The

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Conversely, if regular employer practices would require documentation when the PWFA would not, or would

require more documentation than the PWFA would allow, in a situation where the employee is requesting an

accommodation under the PWFA, the PWFA restrictions on supporting documentation would apply.

Commission has added information from this paragraph in the Interpretive Guidance in section

1636.3(l)(1)(v)—Employer’s Own Policies or Practices.

Comments and Response to Comments Regarding Self-Confirmation and Concerns About

Fraudulent Requests

Several comments requested that the Commission provide a definition of “self-

attestation.” Others argued that, when it comes to pregnancy itself, self-attestation should always

be sufficient to avoid deterring requests for accommodations, stigmatizing those who need

accommodations due to pregnancy, or violating rights to privacy. Yet other comments agreed

that self-attestation of pregnancy should usually be sufficient but suggested that the final rule

allow requests for documentation when the employer has reason to believe that there is “abuse.”

Some argued that self-attestation of pregnancy should only be adequate when the pregnancy is

obvious and, in all other circumstances, documentation of pregnancy should be required. Still

others suggested that, while self-attestation was sufficient to establish pregnancy, employers

should develop policies to address situations where they have reason to believe an employee who

claimed to be pregnant is not being honest.

The Commission agrees that a definition of “self-attestation” is necessary and also has

determined that the word “attestation” suggests too formal a requirement. Instead, the final rule

uses the term “self-confirmation” and provides a definition at § 1636.3(l)(4). As explained

above, the final rule permits self-confirmation of pregnancy when the pregnancy is obvious and

at any stage in a pregnancy when the employee is requesting one of the modifications outlined in

§ 1636.3(j)(4)(i) through (iv) due to pregnancy. When the reasonable accommodation is related

to a time and/or place to pump at work, a time to nurse during work hours (where the regular

location of the employee’s workplace makes nursing during work hours a possibility because the

child is in close proximity), or any other modification related to pumping at work, the final rule

permits self-confirmation of the fact that the employee is pumping at work or nursing during

work hours.

In addition to comments arguing that self-confirmation of pregnancy should not be

allowed when an employer has “reason to believe” there is abuse, several comments expressed

fear that limiting an employer’s ability to seek supporting documentation will lead to fraudulent

requests and prevent employers from punishing those who lie about limitations or the need for

accommodations.

In response, the Commission notes that the final regulation permits employers to seek

supporting documentation when it is reasonable under the circumstances to determine that the

employee has a physical or mental condition related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions (a limitation) and needs an adjustment or change at

work due to the limitation. Moreover, the PWFA itself does not prohibit employers from taking

disciplinary action against those who make false claims about limitations or the need for

accommodations. The Commission urges covered entities to follow the advice of the comment

proposing that employers should have clear policies in place regarding how to address fraud,

dishonesty, and abuse. It is, of course, also the case that an employee may not be punished for

seeking an accommodation even if it is ultimately determined that they are not entitled to one

under the law.

The Commission declines to implement the suggestion that the final rule include a

provision stating it would not violate the PWFA’s anti-retaliation and anti-coercion provisions if

a covered entity punished someone who falsely claimed to need a reasonable accommodation.

The final rule, like the proposed rule, explains the requirements for establishing that a covered

entity has retaliated against or coerced someone in violation of the PWFA. Moreover, it would

not violate the PWFA to fail to provide an accommodation to an individual who failed to

establish they were entitled to one, assuming the covered entity abided by the requirements and

prohibitions of the PWFA. Of course, the Commission cautions that neither those seeking

accommodations under the PWFA nor those charged with responding to such requests may lie

during their interactions.

Comments and Response to Comments Suggesting Other Frameworks for the Final Rule on

Supporting Documentation

Another documentation framework suggested by comments was that covered entities may

seek supporting documentation except when: (1) the need for accommodation is obvious; and (2)

the covered entity’s requirement conflicts with their stated policy on non-pregnancy-related

requests for accommodations. Another comment argued that while covered entities should not

typically be able to seek supporting documentation, they should be able to do so if someone

claims to be pregnant but never gives birth or supplies a birth certificate or is requesting

accommodations for fertility treatments.

The Commission declines to adopt either of these suggestions. The first suggestion

appears to be a combination of the proposed rule’s example of “obvious” conditions and an

acknowledgment that employers already provide accommodations to employees in certain

situations without seeking supporting documentation. The Commission declines to make this

change, although the first example of when it would not be reasonable under the circumstances

to seek documentation in the final rule is based on the “obvious” conditions and

accommodations, as explained above.

The Commission declines to make the changes in the other comment because it does not

account for many situations, such as where an employer may need details about a lifting

restriction or need for remote work during pregnancy or any type of limitation post-partum.

1636.3(l)(2) Reasonable Documentation

The proposed rule explained that when it is reasonable under the circumstances to require

supporting documentation to determine whether to grant the accommodation, the covered entity

is permitted only to require “reasonable documentation.” The proposed rule defined “reasonable

documentation” as documentation that is sufficient to describe or confirm: (1) the physical or

mental condition; (2) that it is related to, affected by, or arising out of pregnancy, childbirth, or

related medical conditions; and (3) that an adjustment or change at work is needed.

Many comments argued that the definition of “reasonable documentation” should be

revised to state that the documentation does not need to identify the nature of, or provide a

detailed description of, the physical or mental condition that is the known limitation. These

comments suggested that reasonable documentation be limited to documentation that: (1)

confirms the individual has a limitation that is related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions, and (2) explains that a change at work is needed due to

the limitation. Some comments expressed concern about protecting the privacy of employees and

urged that “reasonable documentation” be limited to the “minimum information” necessary to

assess the condition’s nexus to pregnancy, childbirth, or a related medical condition. The

comments noted, for example, that supporting documentation need not state that an employee

has to attend a medical appointment related to a miscarriage, but can simply state that the

employee needs to attend a medical appointment during work hours due to pregnancy, childbirth,

or a related medical condition and thus needs a modified start time on a particular day; or the

employee has a prohibition on lifting more than 50 pounds in connection with a condition related

to pregnancy and thus needs an accommodation that eliminates the need to lift more than 50

pounds. In support of this suggestion, the comments explained that asking employees to disclose

detailed medical information to their employers, especially information related to reproductive

and mental health, which can be particularly sensitive or stigmatizing, may deter employees from

seeking accommodations.

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Comments also noted that limiting reasonable documentation to

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Although not directly on point, one comment suggested that allowing employers to request supporting

documentation about an employee’s anticipated or actual abortion, i.e., information about the specific condition that

is the known limitation or the specific related medical condition, would potentially conflict with a proposed rule

currently under consideration by the U.S. Department of Health and Human Services concerning the Health

Insurance Portability and Accountability Act (HIPAA) and heightened confidentiality requirements for information

confirming the related medical condition would help protect patient privacy, which the

comments said could be especially important for employees obtaining abortions or facing

intimate partner violence.

The Commission agrees that protecting patient privacy is an important goal and that

covered entities should be limited to seeking the minimum documentation needed to determine if

an employee is entitled to a reasonable accommodation under the PWFA. However, the

Commission also recognizes that there may be situations when an employer needs

documentation to determine whether the employee has a PWFA limitation and the adjustment or

change at work is needed due to the limitation.

To take account of these interests, the Commission made several changes to the definition

of “reasonable documentation.”

First, the Commission modified the proposed definition of “reasonable documentation” to

clarify that reasonable documentation means “the minimum that is sufficient,” rather than merely

stating that reasonable documentation means documentation that is “sufficient.”

Second, because all that is required is the minimum documentation that is sufficient, the

Commission has changed the language in the regulation to specify that the supporting

documentation need only confirm (rather than “describe or confirm”) the physical or mental

condition. The Commission has included the language from § 1636.3(a)(2) in § 1636.3(l)(2)(i)

defining a physical or mental condition (i.e., an impediment or problem that may be modest,

minor, and/or episodic; a need or a problem related to maintaining the employee’s health or the

health of the pregnancy; or an employee seeking health care related to pregnancy, childbirth, or a

related medical condition itself). Finally, in the Interpretive Guidance in section 1636.3(l)(2)

related to reproductive health care. In response, the Commission notes that HIPAA applies to health care providers,

employers are not required to obtain supporting documentation under the PWFA, and any such documentation must

be kept confidential, as explained in the Interpretive Guidance in section 1636.7(a)(1) under Prohibition on

Disability-Related Inquiries and Medical Examinations and Protection of Medical Information.

Reasonable Documentation, the Commission has explained that this confirmation can be

accomplished through a simple statement and that it does not need to include a diagnosis.

Third, again because all that is required is the minimum documentation that is sufficient,

the Commission has changed the language in the regulation to specify that the supporting

documentation need only confirm (rather than “describe or confirm”) that the physical or mental

condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions and has explained in the Interpretive Guidance in section 1636.3(l)(2) Reasonable

Documentation that pregnancy, childbirth, or related medical conditions need not be the sole, the

original, or a substantial cause of the physical or mental condition given that the statutory

language only requires that physical or mental condition be “related to, affected by, or arising out

of” “pregnancy, childbirth, or related medical conditions.”

Fourth, the final rule provides that the supporting documentation should describe (rather

than “describe or confirm”) the adjustment or change needed at work and has added that the

adjustment or change needed at work must be “due to the limitation” in order to ensure that the

documentation connects the physical or mental condition with the adjustment or change at work.

In the Interpretive Guidance in section 1636.3(l)(2) Reasonable Documentation, the

Commission has added information explaining how seeking more documentation than is set out

in § 1636.3(l) can violate 42 U.S.C. 2000gg–1(1) (§ 1636.4(a)(3)) (if the employer fails to

provide the accommodation based on lack of documentation) and how seeking additional

documentation or information beyond what is permitted in § 1636.3(l) when an employee

requests a reasonable accommodation may violate the PWFA’s prohibitions on retaliation in 42

U.S.C. 2000gg–2(f) (§ 1636.5(f)).

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The Commission has moved the examples that were in the proposed appendix (formerly Examples #36 and #37)

to § 1636.5(f).

The Commission also has added examples in the Interpretive Guidance in section

1636.3(l)(2) Reasonable Documentation to illustrate when documentation from a health care

provider is sufficient.

Generally, as explained in the Interpretive Guidance in section 1636.3(l)(2) Reasonable

Documentation, confirming the physical or mental condition requires only a simple statement

that the physical or mental condition meets the first part of the definition of “limitation” at §

1636.3(a)(2) (i.e., the physical or mental condition is: an impediment or problem, including ones

that are modest, minor, or episodic; a need or a problem related to maintaining the health of the

employee or the pregnancy; or that the employee is seeking health care related to pregnancy,

childbirth, or a related medical condition itself). Because the physical or mental condition can be

something like fatigue or vomiting, there is no need for the statement to contain a medical

diagnosis. Thus, as set out in the Interpretive Guidance in section 1636.3(l)(2) Reasonable

Documentation, documentation is sufficient under § 1636.3(l)(2) even if it does not contain a

medical diagnosis, as long as it has a simple statement of the physical or mental condition.

The physical or mental condition must be related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions. The supporting documentation need not

state that the pregnancy, childbirth, or related medical conditions are the sole, the original, or a

substantial cause of the physical or mental condition at issue, because the statute only requires

that the physical or mental condition be “related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions.” If relevant, the documentation should include

confirmation that the “related medical condition” is related to pregnancy or childbirth.

The documentation should describe what adjustment or change at work is needed due to

the limitation. The Interpretive Guidance in section 1636.3(l)(2) Reasonable Documentation

provides examples of these.

Other comments pointed out that reasonable documentation should include information

about the duration of the limitation. These comments observed that while some limitations may

continue for the entire length of a pregnancy, the duration of other limitations, such as a

postpartum limitation that requires leave, may be less definite. The comments also noted that the

expected duration of the limitation and corresponding accommodation can be a key factor in

determining whether the accommodation would impose an undue hardship, or whether an

essential function(s) could be performed “in the near future.” The Commission generally agrees

with this point but concludes that it would be more useful for covered entities to have

information about the expected duration of the needed modification, rather than the duration of

the limitation itself. The Commission also believes including information about the duration of

the modification could address concerns other comments raised about the need for periodic

updates of documentation. If, for example, supporting documentation indicates that a pregnant

employee would need an hour of leave every morning due to morning sickness for the first 3

months of the pregnancy, the employer would be permitted to request updated documentation at

the end of those 3 months if the employee requested that the accommodation continue. Thus, the

Interpretive Guidance states that an estimate of the expected duration of the modification may be

part of the supporting documentation sought by the employer, if necessary.

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Numerous comments argued that covered entities may not require employees to use a

specific form for supporting documentation, as long as the necessary information is provided.

These and other comments also expressed concern about employers who require employees

seeking accommodations under the PWFA to submit specific forms that call for extensive

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The Commission is aware of case law under the ADA indicating that, when determining whether the reasonable

accommodation of leave will enable an employee to perform the essential functions of a position “in the near

future,” the focus should be on the expected duration of the impairment, as opposed to the expected duration of the

needed leave. See, e.g., Punt v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017); Aubrey v. Koppes, 975 F.3d 995,

1010–11 (10th Cir. 2020); Herrmann, 21 F.4th at 676–77. In those cases, courts appear to be concerned about

situations where the end of the leave and the ability to return to work are not coterminous. Because many

accommodations under the PWFA will be for temporary conditions, the Commission expects that this issue will not

arise with frequency. For example, if an employee needs an essential function temporarily suspended until the end of

their pregnancy, the end of the suspension and the end of their pregnancy are the same time. The Commission also is

concerned that using the duration of the limitation could lead to inaccurate information. An employee may, for

example, have a limitation that will last for an entire pregnancy, such as an inability to be around certain chemicals,

but only needs a change at work for the 2-month period during which the job in question involves proximity to those

chemicals.

medical information. One comment submitted, as attachments, several examples of forms that

employees requesting accommodations under the PWFA have been required to use. These forms

require information beyond the description of “reasonable documentation” presented in the

proposed rule and adopted by this final rule. The forms submitted sought extensive information,

including: whether the individual had previously requested an accommodation; validation that

the individual could perform a long list of essential functions, irrespective of the accommodation

being requested; identification of any diagnoses, impairments, or conditions that might affect the

individual’s ability to perform essential job functions or major life activities; description of side

effects of any treatment received; the length of time the impairment or condition had been

treated; the expected duration of each impairment or condition; and whether the health care

practitioner considered the condition in question to be a disability. The comments also noted that

some covered entities reject supporting documentation based on technical issues, such as use of

the wrong form.

Other comments argued that instead of prohibiting the use of specific forms to request

documentation, the final rule should create a PWFA certification form, similar to the FMLA

certification form, that covered entities could use to request documentation and that would

provide what comments called a “safe harbor.”

The final rule provides that when a covered entity is permitted to seek supporting

documentation under this rule, it may not require that supporting documentation be submitted on

a specific form. This is consistent with similar rules under the FMLA

191

and the ADA

192

and

recognizes that although employers may seek supporting documentation, they should not burden

191

See U.S. Dep’t of Lab., Wage & Hour Division, The Employer’s Guide to the Family and Medical Leave Act 32,

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf (last visited Mar. 18, 2024) (“The

employer must accept a complete and sufficient medical certification, regardless of the format. The employer cannot

reject a medical certification that contains all the information needed to determine if the leave is FMLA-

qualifying.”).

192

See Enforcement Guidance on Reasonable Accommodation, supra note 111, at Question 6 (explaining that

employers may only request reasonable documentation).

employees or health care providers with unnecessary technical requirements in their efforts to

obtain the information.

Finally, the final rule does not include a “PWFA certification form.” Covered entities

should comply with the PWFA’s rule on supporting documentation by only seeking supporting

documentation when it is reasonable under the circumstances and, in those cases, requesting only

reasonable documentation, as defined in the final rule. The Commission fears that designing a

PWFA certification form will create an assumption that supporting documentation is necessary

in every case. It is not, and indeed it is barred in many circumstances. Employers are not required

to obtain documentation for any reasonable accommodation under the PWFA and are

encouraged to minimize documentation burdens on employees seeking accommodation under the

PWFA whenever possible.

The final rule therefore states, at new § 1636.3(l)(2)(i), that when it is reasonable under

the circumstances, as established in paragraph (l)(1), to seek supporting documentation, the

covered entity is limited to seeking reasonable documentation. Reasonable documentation means

the minimum that is sufficient to: (A) confirm the physical or mental condition (i.e., an

impediment or problem that may be modest, minor, and/or episodic; a need or a problem related

to maintaining the employee’s health or the health of the pregnancy; or an employee seeking

health care related to pregnancy, childbirth, or a related medical condition itself) whether or not

such condition meets the definition of disability specified in the ADA; (B) confirm that the

physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or

related medical conditions (together with paragraph (l)(2)(i)(A), “a limitation”); and (C) describe

the adjustment or change at work that is needed due to the limitation.

Furthermore, new § 1636.3(l)(2)(ii) states that covered entities may not require that

supporting documentation be submitted on a specific form.

1636.3(l)(3) Limitations on a Covered Entity Seeking Supporting Documentation from a Health

Care Provider

The proposed rule explained that if a covered entity decides to seek supporting

documentation and meets the requirements set forth in the rule, the covered entity may require

that the reasonable documentation come from a health care provider. Comments suggested one

additional type of health care provider, an industrial hygienist, and also questioned whether

“doula” should be included. The Commission has added “industrial hygienist” to the list and has

moved the reference to “doula” to a place on the list closer to health care providers who offer

similar services. Many comments also recommended that the Commission affirmatively state

that the health care provider could be one that provides services through telehealth; the

Commission has made that addition in the regulation. The final rule also slightly reorders the

listed health care providers so that those focused on mental health care are listed together, adds

“psychiatrist,” which was unintentionally left out of the proposed list, and changes the term

“providers” in “mental health care providers” to “professionals,” to parallel the term used in the

Commission’s ADA policy guidance.

193

Some comments focused on the first part of the proposed rule’s list of health care

providers, i.e., “A covered entity may require documentation comes from an appropriate health

care provider, in a particular situation,” and suggested that the words “appropriate” and “in a

particular situation” be removed in the final rule. The comments argued that these words give

covered entities unnecessary power over the type of health care provider an employee should

visit. The Commission concludes that these qualifiers are unnecessary and that it should be up to

the employee seeking care and the health care provider providing care to determine what type of

health care provider can best serve the person’s needs. The final rule therefore removes these

words.

193

See id.

Other comments suggested that the final rule make clear that the treating physician does

not need to be the one to provide the reasonable documentation, pointing to privacy concerns in

relation to certain kinds of medical care; these comments cited the example of abortion care. The

comments stated that a health care provider familiar with the employee’s circumstances should

be allowed to provide the necessary information even if they are not the person treating the

condition in question. As noted above, when an employer is permitted to seek supporting

documentation, they are only permitted to seek reasonable documentation, which means the

minimum that is sufficient to: (A) confirm the physical or mental condition (i.e., an impediment

or problem that may be modest, minor, and/or episodic; a need or a problem related to

maintaining the employee’s health or the health of the pregnancy; or an employee seeking health

care related to pregnancy, childbirth, or a related medical condition itself) whether or not such

condition meets the definition of disability specified in the ADA; (B) confirm that the physical or

mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related

medical conditions (together with paragraph (l)(2)(i)(A), “a limitation”); and (C) describe the

adjustment or change at work that is needed due to the limitation. Any health care provider

familiar enough with the individual’s circumstances to provide the described information may do

so under the final rule, whether or not they are treating the individual for the condition at issue.

Comments and Response to Comments Regarding Prohibition on Examinations by Employer’s

Health Care Provider

The NPRM stated that it is not practical or necessary for a covered entity to request or

require that an employee be examined by a health care provider of the covered entity’s choosing.

Most of the comments on this proposal agreed that covered entities should never be able

to require individuals requesting accommodation under the PWFA to be examined by a health

care provider of the covered entity’s choosing. Comments explained that this would cause an

unnecessary invasion of privacy, have a chilling effect, burden employees unnecessarily, and

cause delay. Some comments noted that such a requirement would have a particularly negative

effect on individuals seeking abortion care and women of color who face racism in health care

and may be particularly reluctant to go to a new provider selected by their employer. A few

comments disagreed with the proposed rule, noting that second opinions should be permitted

since they are permitted under the FMLA, that some employees may not have a doctor, and/or

that employers who do not want to provide the accommodation supported by the employee’s

doctor will need to seek the opinion of their own doctor.

The final rule prohibits covered entities from requiring that an employee be examined by

a health care provider of the covered entity’s choosing. Although such a practice is allowed in

certain cases under the ADA and the FMLA, even under those laws the practice is limited.

194

The

PWFA covers many common physical or mental conditions for which there will never be a need

for a medical diagnosis, and accommodations under the PWFA will usually be temporary. This

supports a final rule under the PWFA that prohibits examinations by the employer’s health care

provider, even in the limited situations in which the practice is permitted under the ADA.

The final rule, for these reasons and to avoid the chilling effect, burdens, and potential

delays outlined in the comments, states that a covered entity may not require that the employee

seeking the accommodation be examined by a health care provider selected by the covered

entity.

194

Under the FMLA, an employer can only require a second opinion (at the employer’s expense) if it has “reason to

doubt the validity of a medical certification.” 29 CFR 825.307(b). The employer can choose the health care provider

to provide the second opinion but generally may not select a health care provider that it employs or contracts with on

a regular basis. For the third opinion (also at the employer’s expense), if one is sought, the health care provider must

be jointly designated or approved by the employer and the employee. 29 CFR 825.307(c). Under the ADA, the

practice is allowed only if the individual provides insufficient information from their own health care provider and,

even in those circumstances, ADA guidance explains that the employer should explain why the documentation is

insufficient and allow the individual an opportunity to provide the missing information in a timely manner. The

ADA also requires the employer to pay all costs associated with the visit and requires that the examination be

limited to determining the existence of an ADA disability and the functional limitations that require reasonable

accommodation. See Enforcement Guidance on Reasonable Accommodation, supra note 111, at Question 7.

1636.3(l)(4) Formerly Proposed Confidentiality/New Final Self-Confirmation of Pregnancy or

Lactation

As explained supra in the preamble in section 1636.3(l)(1) Seeking Supporting

Documentation Only When Reasonable Under the Circumstances, the final rule at § 1636.3(l)(4)

provides a definition for self-confirmation of pregnancy or lactation. The corresponding section

in the Interpretive Guidance, 1636.3(l)(4) Self-Confirmation of Pregnancy or Lactation, explains

how this is a simple procedure that can occur in the same conversation where the employee

requests an accommodation.

The proposed rule, § 1636.3(l)(4), and the corresponding discussion in the proposed

appendix, described the ADA’s prohibition on disclosure of confidential medical information,

including medical information obtained under the PWFA. Because these legal protections arise

from the ADA and not the PWFA, the Commission removed reference to them in the PWFA

regulation itself. The relevant protections are now described in the Interpretive Guidance in

section 1636.7(a)(1) under Prohibition on Disability-Related Inquiries and Medical

Examinations and Protection of Medical Information. This section explains, as did the NPRM,

that while the PWFA does not have its own provision requiring the protection of medical

information, employees covered by the PWFA also are covered by the ADA, and, under the

ADA, covered entities are required to keep medical information confidential, with limited

exceptions.

195

The NPRM also stated that intentional disclosure of medical information obtained

through the PWFA’s reasonable accommodation process may violate the PWFA’s prohibition on

retaliation and/or coercion.

196

Information regarding how the disclosure of medical information

also may violate the retaliation provision of the PWFA is in the Interpretive Guidance in section

1636.5(f) under Possible Violations of 42 U.S.C. 2000gg–2(f) (§ 1636.5(f)) Based on Seeking

195

88 FR 54738, 54789.

196

Id. at 54744, 54789, 54793.

Supporting Documentation During the Reasonable Accommodation Process and Disclosure of

Medical Information.

1636.4 Formerly Proposed Prohibited Practices/New Final Nondiscrimination with Regard

to Reasonable Accommodations Related to Pregnancy

The Commission changed the title of § 1636.4 in the regulation and the corresponding

section of the Interpretive Guidance to match the title of this section in the statute.

1636.4(a) Failing to Provide Reasonable Accommodation

The Commission did not receive comments suggesting changes to § 1636.4(a). The

Commission made only one minor change to that part of the regulation, to change the

terminology used there (and throughout the preamble, regulation, and Interpretive Guidance)

from “denial” of reasonable accommodation to “failure to provide” reasonable accommodation.

This better reflects the language in 42 U.S.C. 2000gg–1(1), which makes it “an unlawful

employment practice for a covered entity to” “not make reasonable accommodations.”

Throughout the preamble, regulation, and the Interpretive Guidance, the Commission uses

“failure to provide a reasonable accommodation” and “not make reasonable accommodation”

interchangeably. In § 1636.4(a)(1) through (4) in the regulation, in addition to the changes

described below, the Commission has added language to the effect that these sections apply to

“qualified employees” with “known limitations related to pregnancy, childbirth, or related

medical conditions” so that they use the same language as 42 U.S.C. 2000gg–1(1) and §

1636.4(a).

1636.4(a)(1) Formerly Proposed Unnecessary Delay in Responding to a Request for Reasonable

Accommodation/New Final Unnecessary Delay in Providing a Reasonable Accommodation

The Commission received several comments regarding the importance of making delay

in the provision of a reasonable accommodation actionable.

First, numerous comments recommended that the Commission clarify that “unnecessary

delay in responding to the request for a reasonable accommodation” (the language in §

1636.4(a)(1) in the proposed rule) would cover delay in all parts of the reasonable

accommodation process, including delay in responding to the initial request, engaging in the

interactive process, or providing the reasonable accommodation. The Commission agrees that the

intent of the phrase “delay in responding to the request for a reasonable accommodation”

encompasses delay in any part of the reasonable accommodation process. To clarify this point,

the Commission has changed the language in the rule to “unnecessary delay in providing a

reasonable accommodation,” has changed the title of this provision in the Interpretive Guidance

in section to 1636.4(a)(1) Unnecessary Delay in Providing a Reasonable Accommodation and

has added examples of the different ways this could manifest in the Interpretive Guidance for

this section.

Second, one comment recommended clarifying that a delay by a third-party administrator

acting for the covered entity is attributable to the covered entity. The Commission agrees and has

added that information in the Interpretive Guidance in section 1636.4(a)(1) Unnecessary Delay

in Providing a Reasonable Accommodation.

Third, numerous comments suggested adding that the “urgency” of the need for the

accommodation be included as a factor, to account for situations where the need for the

accommodation is an emergency. The Commission declines to add this as a factor because

defining “urgency” would be difficult and could lead to unnecessary litigation regarding whether

or not something was “urgent.” However, the Commission has added information regarding

emergencies in the Interpretive Guidance in section 1636.3(k) under Engaging in the Interactive

Process.

Numerous comments also suggested removing the factor in paragraph (a)(1)(vi) of the

proposed rule (the factor in paragraph (a)(1)(vii) of the final rule), which provides that delay in

providing a reasonable accommodation is more likely to be excused where an interim reasonable

accommodation is offered and that the interim reasonable accommodation cannot be leave,

unless certain circumstances apply. Comments argued that the factor in paragraph (a)(1)(vi) of

the proposed rule could encourage covered entities to rely on interim accommodations and

engage in delay. The Commission recognizes this risk, but, given the numerous comments that

argued in favor of requiring employers to provide interim reasonable accommodations, the

Commission believes that creating an incentive for the provision of interim reasonable

accommodations is important. Responding to the comments, the Commission has limited the use

of leave to excuse an unnecessary delay to the situations where an employee requests or selects

leave as an interim reasonable accommodation. The Commission also has removed the sentence,

“[i]f an interim reasonable accommodation is offered, delay by the covered entity is more likely

to be excused” from proposed § 1636.4(a)(1)(vi) (now § 1636.4(a)(1)(vii)). The language in §

1636.4(a)(1) stating that these are factors to be considered in determining whether there has been

unnecessary delay already explains this concept.

The Commission has included an additional factor for determining whether delay is

unnecessary—how long the accommodation may be required. This factor accounts for situations

where the accommodation is a short-term matter, and, by unnecessarily delaying the response,

the covered entity, in effect, fails to provide the accommodation. This factor is in keeping with

the discussion of delay in the NPRM, which noted that “[g]iven that pregnancy-related

limitations are frequently temporary, a delay in providing an accommodation may mean that the

period necessitating the accommodation could pass without action simply because of the

delay.”

197

1636.4(a)(2) Refusing an Accommodation

The Commission received a few comments regarding § 1636.4(a)(2), which provides that

a qualified employee does not have to accept an accommodation. If the employee cannot perform

197

88 FR 54739, 54789.

the essential functions of the position without the accommodation, the employee is not qualified.

The proposed rule required employers also to consider whether the employee could be qualified

with the temporary suspension of an essential function(s). The comments stated that the proposed

rule created a situation where the employee could refuse the reasonable accommodation that

allowed them to perform the essential functions of the position because the employee would

prefer an accommodation that allowed them to suspend an essential function(s) and this, in

effect, would remove the employer’s “ultimate discretion” in choosing between effective

accommodations. In order to address this issue, the Commission changed this paragraph in the

final regulation so that it does not give the impression that an employee can reject a reasonable

accommodation that allows them to do the essential function(s) of their position in order to have

an essential function(s) of the position temporarily suspended.

1636.4(a)(3) Covered Entity Failing To Provide a Reasonable Accommodation Due to Lack of

Supporting Documentation

The Commission has made four changes to this section of the regulation in order to make

it align with § 1636.3(l), the provision regarding the limits on supporting documentation, and has

reflected these changes in the Interpretive Guidance in section 1636.4(a)(3) Covered Entity

Failing To Provide a Reasonable Accommodation Due to Lack of Supporting Documentation.

First, the Commission has added as § 1636.4(a)(3)(i) that the covered entity must have sought

the supporting documentation. The Commission has maintained as § 1636.4(a)(3)(ii) that seeking

supporting documentation must be reasonable under the circumstances as set out in §

1636.3(l)(1). Second, the Commission has added at § 1636.4(a)(3)(iii) that the supporting

documentation sought must be “reasonable documentation” as defined by § 1636.3(l)(2). Third,

the Commission has added at § 1636.4(a)(3)(iv) that the employer must provide the employee

sufficient time to obtain and provide the supporting documentation. Fourth, the Commission has

added the word “unnecessary” before the word “delay” because an employer only has to justify

unnecessary delay.

Finally, the Commission has reformatted this section to indicate the different

requirements.

1636.4(a)(4) Choosing Among Possible Accommodations

The Commission received several comments about this provision. These comments

pointed out that “similarly situated” is a term that courts have narrowly construed and that its use

here could impede ensuring that employees receive the accommodations that provide equal

opportunity. Some comments suggested adding that equal employment opportunity can be

determined based on evidence of the opportunities that would have been available to the

employee had they not identified a known limitation or sought an accommodation.

The Commission agrees that modifications should be made in this section to protect

qualified employees and to minimize the need for litigation. Thus, the regulation provides that

the “average employee” who is “similarly situated” without a known limitation can include the

qualified employee themselves, and the Interpretive Guidance in section 1636.4(a)(4) Choosing

Among Possible Accommodations contains additional information regarding evidence about

possible comparators. Other comments suggested adding that the similarly situated employees

should be similar in material respects, not all respects; the Commission agrees that this is true for

similarly situated employees in general but did not add this concept to the regulation.

The Commission also received some comments recommending the addition of another

standard, requiring employers to choose an option that most effectively meets the employee’s

needs and provides the employee with equal employment opportunity. The Commission declines

to make this change. Employers must provide an accommodation that is effective. The employer

does not have to provide the “most effective” accommodation or the accommodation that is the

choice of the qualified employee. The Commission also received a comment recommending that

the Commission add a provision to the rule stating that employers may not select any

accommodation that negatively affects an employee’s terms or conditions of employment at any

time. The Commission did not add this because adopting a requirement that employers may not

select an accommodation that “negatively affects” terms or conditions would be a new standard,

and the general concept of this comment is covered by the provision requiring equal employment

opportunity.

One comment suggested an employer should provide the employee with a choice of

options that are responsive to the employee’s needs and allow the employee to choose from the

options. This comment asserted that doing so would decrease litigation for the employer. While

the Commission agrees that this is a best practice and may help the covered entity avoid

litigation, the Commission did not add this idea to the regulation or the Interpretive Guidance.

Finally, the Commission reordered the sentences in this provision in the regulation and

removed the phrase “that do not cause an undue hardship” from this section of the regulation

because it is redundant. The covered entity does not have to provide an accommodation that

causes an undue hardship.

1636.4(b) Requiring a Qualified Employee To Accept an Accommodation

The Commission received a few comments regarding this provision. One comment

argued that the interactive process is not always necessary. The Commission agrees that for some

simple accommodations, the interactive process can be a very quick conversation where the

employee provides information to the covered entity and the covered entity provides the

accommodation. However, covered entities may not require a qualified employee to accept an

accommodation other than one arrived at through the interactive process under 42 U.S.C.

2000gg–1(2). Thus, employers should not provide employees with an accommodation because

the covered entity thinks the accommodation is “obvious.” Rather, the covered entity should

engage the employee in the interactive process, even if it is very abbreviated.

The Commission received a few comments suggesting changes to the description of

damages that could be available in Example #39 in the proposed rule. The Commission agrees

that the damages suggested by the comments could be available and has made changes to the

example, which is now Example #57 in the Interpretive Guidance in section 1636.4(b) Requiring

a Qualified Employee To Accept an Accommodation.

1636.4(c) Denying Opportunities to Qualified Employees

The Commission did not receive comments regarding this provision. The Commission

maintained the language from the proposed rule for this provision. The Commission also has

made minor changes in the Interpretive Guidance in section 1636.4(c) Denying Opportunities to

Qualified Employees for this provision.

1636.4(d) Requiring a Qualified Employee To Take Leave

The Commission maintained the language from the proposed rule for this provision. The

Commission also has made minor changes in the Interpretive Guidance in section 1636.4(d)

Requiring a Qualified Employee To Take Leave for this provision.

Some comments involving this section raised questions about whether an employer may

temporarily require the employee to take leave in situations when the employee cannot work

without an accommodation. The Commission has responded to these comments in the preamble

in section 1636.3(h) under Interim Reasonable Accommodations. Other comments expressed

concerns that this provision would prohibit an employee from requesting leave as a reasonable

accommodation. As explained in the proposed rule, the proposed appendix, and the Interpretive

Guidance in section 1636.4(d) Requiring a Qualified Employee To Take Leave, this is

incorrect—the prohibition on requiring a qualified employee to take leave does not prohibit an

employee from requesting leave as a reasonable accommodation.

1636.4(e) Adverse Action on Account of Requesting or Using a Reasonable Accommodation

The Commission received a few comments regarding the definition of “adverse action,”

including comments that disagreed with the Commission’s definition and instead recommended

using the definition of “adverse employment action”; comments that suggested that the

Commission include its proposed definition in the regulation itself; and a few comments

agreeing with its definition of “terms, conditions, or privileges of employment.”

The Commission disagrees that “adverse action in terms, conditions, or privileges of

employment” should have the same meaning as courts have given the term “adverse employment

action.” Given the divergent views of the circuits at the time of this writing, adopting the

definition of “adverse employment action” in interpreting 42 U.S.C. 2000gg–1(5) would lead to

different outcomes in different circuits and could reduce protections for employees covered by

the PWFA.

198

The Commission has retained the language in the proposed regulation, as well as the

language from the proposed appendix, with minor changes. Specifically, the Commission has

removed language from the proposed appendix about this standard not appearing in Title VII or

the ADA, and the reference to the basic dictionary definition “adverse,” because it has

determined that this information is not necessary to the explanation of this provision. The

Commission also has reorganized the paragraphs in the Interpretive Guidance in section

1636.4(e) Adverse Action on Account of Requesting or Using a Reasonable Accommodation and

made a few minor edits to the examples for this section. The Commission has added language to

Example #58 in section 1636.4(e) Adverse Action on Account of Requesting or Using a

Reasonable Accommodation (proposed Example #40) to clarify that when an employee receives

leave as a reasonable accommodation, production standards such as sales quotas may need to be

198

Compare, e.g., Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022) (concluding that a transfer is not an

adverse employment action absent materially significant disadvantage), cert. granted in part, 143 S. Ct. 2686

(2023), with Threat v. City of Cleveland, 6 F.4th 672, 678–79 (6th Cir. 2021) (concluding that an “adverse

employment action” may include shift changes and reassignments).

prorated to ensure that leave is an effective accommodation, as discussed infra in the Interpretive

Guidance in section 1636.3(h) under Ensuring That Employees Are Not Penalized for Using

Reasonable Accommodations.

1636.5 Remedies and Enforcement

Some comments expressed general concerns regarding enforcement, including a concern

that employees would find it too difficult to enforce their rights under the law, a suggestion that

the Commission find a way to enforce the law quickly, and a recommendation that the

Commission create a safe harbor for small businesses that would allow businesses with 15 to 50

employees the opportunity to fix a violation once it was brought to their attention and that would

permit a finding of liability only following repeated or willful violations.

The Commission agrees that it is important that employees be able to enforce their rights;

to that end, the Commission conducts outreach with employees on a regular basis. The

Commission shares the desire for expeditious compliance; this regulation is one step in

furtherance of that goal. The Commission conducts significant outreach to small businesses to

help them with compliance; employers can obtain more information about these opportunities at:

https://www.eeoc.gov/employers/small-business. Finally, the Commission does not have the

authority to create an exemption for small employers; however, the Commission notes that

damages in cases regarding the provision of a reasonable accommodation can be limited by the

employer’s good-faith efforts.

199

In the final rule, the Commission has removed section § 1636.5(b) because it applies to

employees protected by the Congressional Accountability Act. Throughout this section of this

regulation, the Commission has replaced references to “this section” with “the PWFA” to clarify

199

42 U.S.C. 2000gg–2(g).

that the powers, remedies, and procedures referenced in this section are provided by the statute

itself.

1636.5(a) Remedies and Enforcement Under Title VII

The final rule at § 1636.5(a) is the same as the proposed rule. The Commission has added

information in the Interpretive Guidance in section 1636.5(a) Remedies and Enforcement Under

Title VII to inform employees and covered entities regarding the time limit for filing charges

under the PWFA, based on how the Commission enforces other statutes for which it is

responsible.

1636.5(e) Remedies and Enforcement Under Section 717 of the Civil Rights Act of 1964

In the Interpretive Guidance in section 1636.5(e) Remedies and Enforcement Under

Section 717 of the Civil Rights Act of 1964, the Commission has added information from the

NPRM regarding the application of § 1636.5(e).

200

Damages

In the Interpretive Guidance in section 1636.5 under Damages, the Commission has

added information regarding the damages available under the PWFA pursuant to 1977A of the

Revised Statutes of the United States, 42 U.S.C. 1981a.

1636.5(f)(1) and (2) Prohibition Against Retaliation

The Commission received some comments regarding the prohibitions on retaliation and

coercion.

First, one comment questioned whether the regulation’s prohibition of an employer

seeking documentation when it is not reasonable to do so would create a new standard for

retaliation that does not require intent; it does not. To minimize any misunderstanding and

200

88 FR 54742.

provide a fuller explanation of when going beyond the regulatory limits on seeking supporting

documentation set out in § 1636.3(l) may violate 42 U.S.C. 2000gg–2(f) (§ 1636.5(f)), the

Commission removed proposed rule § 1636.5(f)(1)(iv) and (v) and proposed rule §

1636.5(f)(2)(iv) and (v) and, instead, explained the interaction between the limitations on

supporting documentation and the PWFA’s retaliation provision in detail in the Interpretive

Guidance in section 1636.5(f) Prohibition Against Retaliation.

Second, as part of these changes, the Commission has created a new section in the

Interpretive Guidance in section 1636.5(f) entitled Possible Violations of 42 U.S.C. 2000gg–2(f)

(§ 1636.5(f)) Based on Seeking Supporting Documentation During the Reasonable

Accommodation Process and Disclosure of Medical Information and has moved the explanation

of how seeking supporting documentation or disclosing medical information may violate 42

U.S.C. 2000gg–2(f) to this section. The Commission also has added an additional example

regarding the unauthorized disclosure of medical information to the examples of retaliation in the

Interpretive Guidance in section 1636.5(f) Prohibition Against Retaliation.

Third, the Commission removed language that a request for a reasonable accommodation

constitutes “protected activity” in the coercion section of the regulation, at proposed rule §

1636.5(f)(2)(ii), because “protected activity” is not a phrase used in the analysis of coercion

claims.

The Commission received several comments requesting additional examples involving

the prohibition on retaliation. The Commission agrees that more examples could be helpful and

has included a few more in the Interpretive Guidance in section 1636.5(f) Prohibition Against

Retaliation, including some related to requests for supporting documentation. Other comments

suggested edits to certain examples in the proposal, and the Commission incorporated some of

those modifications. For example, in addition to adding descriptive titles to the examples in this

section, the Commission has added facts to certain examples to strengthen the connection

between the covered entity’s actions and the protected activity. The Commission added

explanations to clarify how certain actions that may violate this provision of the PWFA, also

may violate 42 U.S.C. 2000gg–1(1) (because these actions may make the accommodation

ineffective) and 2000gg–1(5) (prohibiting adverse actions), rather than merely including the

relevant statutory citation.

The Commission also has included in the Interpretive Guidance in section 1636.5(f)

Prohibition Against Retaliation additional information about retaliation and coercion from its

Enforcement Guidance on Retaliation and Related Issues so that this information is more easily

accessible.

One comment requested that information regarding neutral work rules, such as fixed

leave policies, be moved from the Interpretive Guidance to the regulation. The Commission

declines to make this change but has added examples regarding this type of policy to the

Interpretive Guidance in section 1636.5(f) Prohibition Against Retaliation.

The Commission received a few comments expressing concern that mission statements,

statements regarding religious beliefs of an employer, or statements in employee handbooks

would be seen as violating § 1636.5(f)(2). Whether a statement violates 42 U.S.C. 2000gg–

2(f)(2) will depend on the language of the statement, but, as the examples provided in the NPRM

and the final rule for this provision show, the making of general statements regarding an

employer’s mission or religious beliefs is not the type of conduct that the Commission previously

has determined would be prohibited by this provision.

201

Additionally, the Commission made minor changes to § 1636.5(f). The proposed rule at §

1636.5(f)(1) referred to “employee, applicant, or former employee” and “individual” to refer to

this group; the final rule uses only “employee” as that is the language in the statute. The removal

of the words “applicant” and “former employee” and “individual” is a minor change. The statute

201

Certain types of employer statements or policies, of course, may violate 42 U.S.C. 2000gg–2(f). Cf. EEOC v.

Morgan Stanley & Co., Inc., No. 01-CIV-8421-RMBRLE, 2002 WL 31108179, at *2 (S.D.N.Y. Sept. 20, 2002)

(finding that the portion of the employer’s code of conduct that required employees to notify the employer before

contacting a governmental or regulatory body violated public policy because it chilled employee communications

with the EEOC).

at 42 U.S.C. 2000gg(3) provides that “employee” in the statute includes “applicant”; the same is

true for the regulation and the Interpretive Guidance. The statute at 42 U.S.C. 2000gg(3)(A)

refers to the Title VII definition of employee; that definition includes former employees when

relevant.

202

Finally, the proposed rule in § 1636.5(f)(2) used the word “because”; this has been

changed to “on account of” to match the statute.

1636.5(g) Limitation on Monetary Damages

Several comments recommended that the Commission clarify that the good faith defense

to money damages is limited to damages for a covered entity’s failure to make reasonable

accommodations under 42 U.S.C. 2000gg–1(1) (§ 1636.4(a)) only. The Commission agrees that

this clarification would be helpful and has added it to the Interpretive Guidance in section

1636.5(g) Limitation on Monetary Damages.

1636.6 Waiver of State Immunity

A few comments recommended that the Commission either exempt State employers from

the PWFA or create exceptions in the PWFA for certain State laws to provide States greater

protection from the PWFA. The Commission declines to make these changes. The statute at 42

U.S.C. 2000gg–4 provides that “A State shall not be immune under the 11th Amendment to the

Constitution from an action in a Federal or State court of competent jurisdiction for a violation of

[the PWFA].” A decision by the Commission to modify this waiver would be in violation of the

statute.

203

202

See supra note 6.

203

An amendment was introduced and defeated in the Senate that would have eliminated the PWFA’s waiver of

State immunity. See Roll Call 415, Bill Number: H.R. 2617, U.S. Senate (Dec. 22, 2022),

https://www.senate.gov/legislative/LIS/roll_call_votes/vote1172/vote_117_2_00415.htm (setting out the Senate vote

tally for S. Amend. 6569 to S. Amend. 6558 to S. Amend. 6552 to H.R. 2617, Consolidated Appropriations Act,

2023) (40 yeas, 57 nays, 3 not voting); 168 Cong. Rec. S10,070 (daily ed. Dec. 22, 2022) (setting out the Senate

vote tally for S. Amend. 6569 to the Pregnant Workers Fairness Act).

1636.7 Relationship to Other Laws

1636.7(a)(1) Relationship to Other Laws in General

Many comments addressed the PWFA and its relationship to other laws, some suggesting

the inclusion of additional laws in the discussion in the Interpretive Guidance and others asking

whether accommodations under the PWFA would lead to violations of other laws. The

Commission has maintained the rule language from the NPRM and has made changes and

additions to the Interpretive Guidance in section 1636.7(a)(1) Relationship to Other Laws in

General in response to the comments. These changes and the Commission’s responses to specific

comments are discussed below.

Some comments recommended that collective bargaining agreements (CBAs) and

workplace safety laws be added to the list of laws in § 1636.7(a)(1), to clarify that the PWFA

does not invalidate CBAs or workplace safety laws that provide greater or equal protection for

individuals affected by pregnancy, childbirth, or related medical conditions. The Commission

agrees with this suggestion and has added language to this effect in the Interpretive Guidance in

section 1636.7(a)(1) Relationship to Other Laws in General.

Other comments asked how the PWFA will interact with the FMLA. The FMLA provides

job-protected unpaid leave for serious health conditions, including pregnancy. As set out in

2000gg–5(a)(1), nothing in the PWFA invalidates or limits the powers, remedies, and procedures

under other Federal laws that provide greater or equal protection for individuals affected by

pregnancy, childbirth, or related medical conditions. Thus, the PWFA does not invalidate or limit

the rights of employees covered by the FMLA or State versions of it. The Department of Labor’s

regulations set out how the FMLA interacts with other civil rights laws, including leave as a

reasonable accommodation under the ADA.

204

See 29 CFR 825.702.

Some comments asked the Commission whether breaks under the PWFA must be paid,

either under the PUMP Act or the FLSA.

205

As the Commission explained in the discussion of

reasonable accommodations in the NPRM, “Breaks may be paid or unpaid depending on the

employer’s normal policies and other applicable laws. Breaks may exceed the number that an

employer normally provides because reasonable accommodations may require an employer to

alter its policies, barring undue hardship.”

206

One comment suggested that the Commission create a safe harbor provision for covered

entities similar to one created by the Department of Labor for wage deductions. The PWFA does

not provide the Commission with this authority.

The Commission received some comments regarding the requirements for Federal

agencies under Executive Order 13164. The Commission will respond to those through its work

with Federal agencies.

Comments and Response to Comments Regarding the Relationship With Title VII

The Commission did not receive many comments regarding the discussion in the

proposed appendix concerning § 1636.7(a)(1), about the relationship between the PWFA and

Title VII. The Commission has maintained the discussion from the proposed appendix with some

edits for style and clarity and added it in the Interpretive Guidance in section 1636.7(a)(1) under

The PWFA and Title VII.

A few comments questioned whether providing an accommodation under the PWFA

would violate Title VII’s prohibition on sex discrimination. This issue is discussed in more detail

205

See U.S. Dep’t of Lab., Field Assistance Bulletin No. 2023-02: Enforcement of Protections for Employees to

Pump Breast Milk at Work (May 17, 2023), https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf (discussing

compensability of breaks under the FLSA).

206

88 FR 54730 n.102, 54781 n.60.

above.

207

The employees covered by the PWFA also are covered by Title VII. Title VII, as

amended by the PDA, provides for accommodations for employees affected by pregnancy,

childbirth, or related medical conditions under certain circumstances, even when all employees

do not receive the same accommodations.

208

Providing these accommodations under Title VII

does not violate Title VII even if they are not provided to all employees; the same is true under

the PWFA.

Comments and Response to Comments Regarding the Relationship With the ADA

The Commission received some comments with questions regarding the interaction

between the ADA and the PWFA. One comment recommended that the Commission state that if

an employee might be covered by both the ADA and the PWFA, an employer should consider

the ADA first. The Commission disagrees that it should make this determination or that

employers should necessarily consider the ADA first. While it will depend on the specific facts

of the situation, generally, when an employee might be covered by both the ADA and the

PWFA, an employer’s analysis should begin with the PWFA because the definition of “known

limitation” means that under the PWFA an employer is required to provide reasonable

accommodations in situations in which it may not be required to do so under the ADA. This is

consistent with 42 U.S.C. 2000gg–5(a)(1), which states that when multiple State or Federal laws

provide protection, a covered entity should consider all applicable laws and follow the principles

that provide the broadest protections and impose the smallest burden on the employee. This has

been added in the Interpretive Guidance in section 1636.7(a)(1) under The PWFA and the ADA.

207

See supra, Response to Comments Regarding the Commission’s Proposed Definition of “Pregnancy, Childbirth,

or Related Medical Conditions” as Reflected in Statutory Text; see, e.g., Enforcement Guidance on Pregnancy

Discrimination, supra note 31, at (I)(C)(3); Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 290 (concluding that the State

could require employers to provide up to four months of medical leave to pregnant women where “[t]he statute is

narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related

medical conditions.”); Johnson, 431 F.3d at 328 (“If the leave given to biological mothers is granted due to the

physical trauma they sustain giving birth, then it is conferred for a valid reason wholly separate from gender.”).

208

See, e.g., Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(C)(3); Young, 595 U.S. 206.

A few comments questioned whether providing an accommodation under the PWFA

would result in violations of the ADA if doing so made granting the accommodation to an

individual covered by the ADA an undue hardship or because the PWFA provides for

accommodations in situations that may not be covered by other laws. As an initial matter, the

Commission disagrees that accommodations should be viewed as a zero-sum game. Under both

the ADA and the PWFA, an individualized assessment occurs; there is no guarantee that an

accommodation for one employee will result in another employee receiving or not receiving one.

As data from the Job Accommodation Network show, most accommodations under the ADA are

no-cost or low-cost.

209

If there is truly a situation where there are limits—for example, if there

are only 10 parking spaces—the employer can provide the accommodation until the limit is

reached on a first-come, first-served or another neutral basis. Further, the fact that an employee is

able to receive an accommodation under the PWFA that an employee cannot receive under the

ADA does not violate the ADA because in that case, the employer is not refusing the

accommodation to the person because of their disability. Rather, the employer is complying with

its obligations under a different Federal law.

The Commission has provided additional information and examples regarding the

interaction between the PWFA and the ADA, in the Interpretive Guidance in section

1636.7(a)(1) under The PWFA and the ADA, including examples of that relationship.

Within section 1636.7(a)(1) of the Interpretive Guidance, as set out below, the

Commission has included information about two critical ADA protections that apply to

employees covered by the PWFA: the rules that limit covered entities from making disability-

related inquiries and requiring medical exams and the rules protecting confidential medical

information.

210

The information explains how the ADA’s provisions that restrict the ability of

209

Job Accommodation Network, Costs and Benefits of Accommodation (May 4, 2023) [hereinafter Costs and

Benefits of Accommodation], https://askjan.org/topics/costs.cfm.

210

The ADA confidentiality rule was included in the NPRM in § 1636.3(l)(4).

employers to make disability-related inquiries interact with the PWFA and how the ADA’s rules

regarding confidential medical information and restrictions on sharing confidential medical

information apply to medical information collected under the PWFA.

Comments and Response to Comments Regarding the Confidentiality of Medical Information

As explained in the NPRM, the PWFA does not include a provision specifically requiring

covered entities to maintain the confidentiality of medical information obtained in support of

accommodation requests under the PWFA. However, applicants, employees, and former

employees covered by the PWFA also are covered by the ADA.

211

Under the ADA, covered

entities are required to keep medical information of all applicants, employees, and former

employees (whether or not those individuals have disabilities) confidential, with limited

exceptions.

212

The Commission has long held that these ADA rules on confidentiality apply to all

medical information, whether obtained through the ADA process or otherwise; thus this

protection applies to medical information obtained under the PWFA, including medical

information voluntarily provided and medical information provided as part of the reasonable

accommodation process.

213

Moreover, as a practical matter, in many circumstances under the

PWFA the medical information obtained by an employer may involve a condition that could be a

disability; rather than an employer attempting to parse out whether to keep certain information

211

See 42 U.S.C. 12111(4), (5) (ADA); 42 U.S.C. 2000gg(2)(B)(i), (3) (PWFA).

212

42 U.S.C. 12112(d)(3)(B); 29 CFR 1630.14(b)(1), (c)(1), (d)(4); Enforcement Guidance on Disability-Related

Inquiries, supra note 170, at text accompanying nn.9–10 (“The ADA requires employers to treat any medical

information obtained from a disability-related inquiry or medical examination . . . as well as any medical

information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such

information only in limited circumstances with supervisors, managers, first aid and safety personnel, and

government officials investigating compliance with the ADA.”); Enforcement Guidance: Preemployment Disability-

Related Questions, supra note 170, at text accompanying n.6 (“Medical information must be kept confidential.”).

213

See supra note 212. This policy also appears in numerous EEOC technical assistance documents. See, e.g.,

EEOC, Visual Disabilities in the Workplace and the Americans with Disabilities Act, text preceding n.43 (2023),

https://www.eeoc.gov/laws/guidance/visual-disabilities-workplace-and-americans-disabilities-act#q8 (“With limited

exceptions, an employer must keep confidential any medical information it learns about an applicant or employee.”).

confidential or not, all medical information should be kept confidential.

214

Additionally, an

employer’s disclosure of medical information obtained through the PWFA’s reasonable

accommodation process beyond what is permitted under the ADA may violate the PWFA’s

prohibition on retaliation.

Many comments expressed support for the proposed rule’s position that the ADA rules

regarding medical confidentiality apply to medical information obtained by covered entities

under the PWFA. Some of these comments urged the Commission to specifically state in the

final rule that employers must store an employee’s medical information separate from personnel

files and may not share it with anyone other than the supervisor implementing the

accommodation. Another comment suggested that the final rule require employers to obtain an

employee’s written consent before disclosing medical information received under the PWFA in

all circumstances. Finally, some comments expressed concern that State law enforcement

agencies may seek medical information from covered entities regarding abortion care and

requested that the final rule address this issue.

Because these confidentiality provisions arise from a statute other than the PWFA, and

the violation of these provisions, if one occurred, would be of the ADA and not the PWFA, the

Commission has decided not to include them in the regulation itself. Rather, this information has

been included in the Interpretive Guidance in section 1636.7(a)(1) under The PWFA and the

ADA and under Prohibition on Disability-Related Inquiries and Medical Examinations and

Protection of Medical Information.

In response to concerns about State law enforcement agencies seeking medical

information related to abortion care from PWFA-covered entities, the Commission reminds

employers that the PWFA rules do not require employers to seek supporting documentation

regarding requested reasonable accommodations. The Commission further reminds employers

214

Requests for accommodation under the PWFA also may overlap with FMLA issues, and the FMLA requires

medical information to be kept confidential as well. 29 CFR 825.500(g).

that when the employer is permitted to seek supporting documentation, it is limited to the

minimum that is sufficient to confirm that the employee has a physical or mental condition

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a

limitation), and describe the adjustment or change at work that is needed due to the limitation.

Moreover, as noted above, the ADA’s confidentiality provisions and limits on disclosure of

medical information, reiterated in the Interpretive Guidance in section 1636.7(a)(1) under The

PWFA and the ADA and under Prohibition on Disability-Related Inquiries and Medical

Examinations and Protection of Medical Information, apply to medical information, including

medical information collected by the employer under the PWFA, and thus the ADA prohibits an

employer from releasing medical information except in five specified circumstances.

Further, the Commission has reorganized section 1636.5(f) in the Interpretive Guidance

to highlight the potential retaliation claims that could arise regarding a covered entity seeking or

releasing supporting documentation in situations where it would not be permissible under the

regulation. These situations are now addressed in the Interpretive Guidance in section 1636.5(f)

under Possible Violations of 42 U.S.C. 2000gg–2(f) (§ 1636.5(f)) Based on Seeking Supporting

Documentation During the Reasonable Accommodation Process and Disclosure of Medical

Information.

1636.7(a)(2) Limitations Related to Employer-Sponsored Health Plans

The Commission has not changed the regulation for this provision.

1636.7(b) Rule of Construction

The Commission received thousands of comments supporting the Commission’s case-by-

case approach to considering employer defenses asserting religious or constitutional

considerations. The Commission also received tens of thousands of comments asserting that

giving certain accommodations for pregnancy, childbirth, or related medical conditions, such as

providing leave for abortion, infertility treatments, or contraception, would infringe upon the

employer’s religious freedom and therefore the employer should not be required to provide such

accommodations. As explained below, employers who assert that the provision of such

accommodations infringes upon their religious exercise may assert numerous statutory and

constitutional defenses. Because the facts of each case will differ, the Commission will apply

these defenses using a case-by-case analysis,

215

using the framework provided here and

consistent with the Commission’s approach to other statutes that the Commission enforces.

216

Section 107(b) of the PWFA, codified at 42 U.S.C. 2000gg–5(b), provides a “rule of

construction” stating that the law is “subject to the applicability to religious employment” set

forth in section 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e–1(a). The relevant

portion of section 702(a) provides that “[Title VII] shall not apply . . . to a religious corporation,

association, educational institution, or society with respect to the employment of individuals of a

particular religion to perform work connected with the carrying on by such corporation,

association, educational institution, or society of its activities.”

217

The final rule reiterates this

PWFA statutory language and adds that nothing in the regulation limits the rights of a covered

entity under the U.S. Constitution, and nothing in 42 U.S.C. 2000gg–5(b) or the regulation limits

the rights of an employee under other civil rights statutes.

Comments Regarding the Rule of Construction

The Commission received comments that expressed a broad range of interpretations of

the PWFA’s “rule of construction” provision in section 107(b). Numerous comments agreed with

the Commission’s proposed rule to consider the provision’s application to employers on a case-

by-case basis. Many such comments reasoned that the provision should be interpreted consistent

215

See EEOC, Compliance Manual on Religious Discrimination, (12-I)(C) (2021) [hereinafter Compliance Manual

on Religious Discrimination], https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.

216

In accordance with the Commission’s Compliance Manual on Religious Discrimination and the Commission’s

long-standing polices, the Commission will consider these defenses, when asserted, in all parts of its investigation

and enforcement process.

217

42 U.S.C. 2000e–1(a).

with section 702(a) of the Civil Rights Act of 1964 to avoid confusion regarding its application,

especially because the same facts may underlie Title VII and PWFA claims. Those comments

further observed that section 702(a) strikes the correct balance between the rights of employees

and the rights of employers. Other comments focused on one or more of three of section 107(b)’s

components: (1) which entities qualify under the provision; (2) the scope of employment

decisions to which the provision applies; and (3) the extent to which the provision limits the

application of the PWFA’s requirements as to qualifying religious entities. The Commission

describes the range of comments received as to each component in turn.

Many comments asserted that section 107(b) covers religious entities only if they are

qualifying entities under section 702(a). Conversely, many other comments asserted that section

107(b) should apply more broadly to entities owned and operated by religious employers. A few

such comments stated that the provision should assess whether entities qualify under section

702(a) using the definition of a “religious” organization articulated in a 2017 Memorandum

issued by the U.S. Attorney General.

218

Other comments said that the provision should be

redefined to include employers that object to accommodations on conscience, moral, ethical,

scientific, health or medical, or any other secular grounds.

Comments varied regarding their view of the scope of employment decisions to which

section 107(b) applies. Some comments asserted that section 107(b) applies only to hiring and

firing coreligionists, and other comments asserted that it applies only to providing PWFA

accommodations. By contrast, some comments asserted that the provision broadly covers all

aspects of the employment relationship.

Furthermore, comments varied regarding the extent to which section 107(b) limits the

application of the PWFA’s requirements as to qualifying religious entities. Some comments

218

Memorandum from the Attorney General to All Executive Departments and Agencies, Federal Law Protections

for Religious Liberty (Oct. 6, 2017), 82 FR 49668, 49670, 49677 (Oct. 26, 2017) [hereinafter Attorney General

Religious Liberty Memorandum], https://www.justice.gov/opa/press-release/file/1001891/download.

stated that the provision allows qualifying entities to prefer coreligionists only in providing

accommodation but does not otherwise exempt qualifying religious organizations from providing

accommodations or permit them not to provide accommodations based on religious beliefs. Such

comments noted that Congress demonstrated its intent not to broadly exempt religious employers

from PWFA compliance when, prior to the law’s passage, it rejected an amendment that would

have done so.

219

A few such comments maintained that an overly broad religious exemption

would permit employers to impede employees’ autonomy over decision-making regarding

pregnancy, freedom of religion, and freedom from the religious beliefs of others. Further, some

comments asserted that the provision, like section 702(a), does not allow a qualifying entity to

discriminate on other protected bases, such as sex. Some comments stated that, in their view,

when an employer is a qualifying entity under section 702(a), the employer is exempt from all of

Title VII’s requirements, and the same rule should apply to the PWFA.

Other comments argued that section 107(b) exempts religious organizations more broadly

than section 702(a). Some of these comments stated that limiting the exemption only to allow

qualifying organizations to prefer coreligionists is at odds with Title VII’s text and Bostock v.

Clayton County;

220

that this reasoning does not follow given that the PWFA does not prohibit

religious discrimination; that it ignores the Supreme Court’s expressed concerns about such an

interpretation; and that it ignores the PWFA’s legislative history indicating that Members of

Congress were concerned about religious organizations’ rights. Such comments therefore

concluded that a qualifying organization should be able both to prefer coreligionists and to

abstain from making an accommodation that would violate the organization’s religion under

section 107(b).

219

See 168 Cong. Rec. S10,069–70 (daily ed. Dec. 22, 2022) (S. Amend. 6577).

220

590 U.S. 644, 682 (2020) (describing section 702(a) of the Civil Rights Act of 1964).

Comments urging the Commission to interpret section 107(b) more broadly than section

702(a) recommended that the provision be interpreted consistent with the religious entities

provision in Title I of the ADA;

221

those comments asserted that an employer should be

permitted to require conformity to its religious tenets but acknowledged that the ADA provision

does not allow employers to discriminate on other grounds.

The Commission also received comments that either directly or indirectly responded to

five directed questions about how the rule of construction would apply in concrete factual

scenarios. These comments offered a few fact patterns and expressed concerns that employers

may be required to provide leave for medical procedures to which they have religious objections,

and that employers may be liable under the PWFA’s retaliation and coercion provisions for

objecting to medical procedures for religious reasons. Comments expressed concern that

employers would violate the law’s coercion provision if they informed their employees of their

religious objections to certain medical procedures, or that they would violate the law’s retaliation

provision if they terminated the employment of an employee who requested or received an

accommodation for such a medical procedure.

Response to Comments Regarding the Rule of Construction

The Commission will interpret the applicability of the PWFA’s rule of construction

provision on a case-by-case basis as it does with section 702(a) of the Civil Rights Act of 1964.

The Commission’s decision is based on several considerations. First, section 107(b) of the

PWFA expressly states that the PWFA is “subject to the applicability to religious employment”

set forth in section 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e–1(a). Courts and the

Commission always have considered defenses raised under section 702(a) on a case-by-case

221

See 42 U.S.C. 12113(d).

basis.

222

Second, comments suggesting a different approach provided conflicting

recommendations and few concrete factual scenarios as to how the provision would apply under

these different rules, thereby creating ambiguity and, as detailed below, failing to provide

sufficient justification for deviating from the established case-by-case approach. Third, this case-

by-case approach will enable employers, employees, the Commission, and courts to consider the

circumstances of each case to the fullest extent under both Title VII—should accommodation

claims for pregnancy, childbirth, or related medical conditions be raised under that statute—and

the PWFA.

223

The Commission declines to adopt the religious entities provision set forth in Title I of

the ADA because the ADA’s provision contains an additional clause not found in section 702(a)

of the Civil Rights Act, and Congress explicitly referenced section 702(a)—not the ADA

religious entities provision—in enacting the PWFA. As stated above, the Commission must rely

on the text of the law that Congress enacted.

In support of the idea that the Commission should adopt a broader interpretation of

section 107(b) than section 702(a), many comments cited to the legislative history of the PWFA.

Although the Commission’s interpretation is driven by the statute’s text,

224

given the many

comments that cited to the legislative history and the comments submitted by legislators, the

Commission reviews the legislative history of section 107(b) and responds to these comments.

222

See, e.g., Compliance Manual on Religious Discrimination, supra note 215, at (12-I)(C)(1) (stating that whether

an organization is covered by section 702 “depend[s] on the facts”; “Where the religious organization exemption is

asserted by a respondent employer, the Commission will consider the facts on a case-by-case basis; no one factor is

dispositive in determining if a covered entity is a religious organization under Title VII’s exemption.”); id. at n.60

(discussing court decisions when a defendant has asserted section 702(a) as a defense); Newsome v. EEOC, 301 F.3d

227, 229–30 (5th Cir. 2002) (per curiam) (addressing a case in which EEOC dismissed a charge where the employer

offered evidence that it fell under the religious organization exception).

223

For example, an employee can bring a failure to accommodate claim under 42 U.S.C. 2000gg–1(1); the same

facts could be the subject of a discrimination claim under Title VII. See generally Young, 575 U.S. 206 (concerning

the Title VII claim of a pregnant employee who was denied a light duty position). Likewise, depending on the facts,

an employee who was terminated after requesting or using a reasonable accommodation under the PWFA could

have a claim under both the PWFA (42 U.S.C. 2000gg–1(5), 2000gg–2(f)) and Title VII for pregnancy

discrimination or retaliation.

224

See supra note 67.

The PWFA, as it passed the U.S. House of Representatives, did not include the language

now contained in section 107(b). The House also had voted against including similar language in

section 107(b) in the definition of “employer.”

225

In the U.S. Senate, the language now contained

in section 107(b) was first offered as an amendment by one of the bill’s principal sponsors,

Senator William Cassidy.

226

Senator James Lankford then offered a different amendment that

would have provided even broader protection for religious organizations using language that

differed from both the ultimately enacted language of section 107(b) and Title VII’s section

702(a).

227

Senator Cassidy spoke against that broader amendment, stating that language referring

to section 702(a) would be broad enough—he noted the initial section 107(b) language “was

drafted by House Republican Virginia Foxx. . . . [and] addresses the issue,” and asserted that

Senator Lankford’s amendment “would increase the likelihood of changing previous [Title VII]

jurisprudence.”

228

Ultimately, the section 107(b) language offered by Senator Cassidy and

adopted in the final bill was added to a rule of construction, rather than to the definition of

“employer.”

229

Prior to the House vote on the final omnibus bill, Representative Jerrold Nadler,

the principal sponsor of the PWFA in the House, and Representative Robert Scott, the Chair of

the House committee that had jurisdiction over the PWFA, issued statements regarding the

interpretation of section 107(b); both statements interpreted the provision’s protections

differently than Senator Cassidy had interpreted them.

230

225

H.R. Rep. No. 117-27, pt. 1, at 11.

226

See 168 Cong. Rec. S10,063, 10,070–71 (daily ed. Dec. 22, 2022) (S. Amend. 6558).

227

See 168 Cong. Rec. S10,069–70 (daily ed. Dec. 22, 2022) (statement of Sen. James Lankford on S. Amend.

6577).

228

Id. (statement of Sen. William (Bill) Cassidy).

229

See 42 U.S.C. 2000gg–5(b).

230

See 168 Cong. Rec. H10,527–28 (daily ed. Dec. 23, 2022) (statement of Rep. Jerrold (Jerry) Nadler); 168 Cong.

Rec. E1361–62 (daily ed. Dec. 27, 2022) (statement of Rep. Robert C. (Bobby) Scott).

The Commission also reviewed the post-enactment statements of legislators.

231

After

enactment, and during this proposed rule’s public comment period, Senator Lankford submitted a

comment that included a legal analysis of why he believed the language in section 702(a) applied

more broadly than hiring and firing.

232

Senator Patricia Murray and Senator Robert Casey both

submitted comments that agreed with the Commission’s proposed case-by-case approach.

233

Representatives Nadler and Scott also submitted comments; Representative Nadler’s comment

endorsed the Commission’s proposed case-by-case approach and restated the views he had

expressed earlier about section 107(b)—namely, that section 107(b) allows religious employers

to prefer people who practice their religion in hiring and firing, and in making comparable

pregnancy accommodations, but it does not otherwise exempt employers from their obligations

under the PWFA to provide reasonable accommodations that do not pose an undue hardship;

234

Representative Scott also endorsed the case-by-case approach.

235

Taken together, the statements prior to the enactment of the PWFA show that some

Members of Congress disagreed about the extent of the protection they were conferring on

religious organizations. This does not contradict the Commission’s decision to apply section

107(b) on a case-by-case basis; in fact, a case-by-case approach will allow employers,

employees, the Commission, and courts to evaluate in concrete situations the way in which

section 107(b) should apply.

231

The post-enactment statements of legislators reflect the personal views of the legislators, not the legislative

history of the bill. See supra note 92.

232

Comment EEOC-2023-0004-98436, Sen. James Lankford, 19 U.S. Senators, and 41 Members of Congress (Oct.

10, 2023).

233

Comment EEOC-2023-0004-98257, Sen. Patricia (Patty) Murray and 24 U.S. Senators (Oct. 10, 2023);

Comment EEOC 2023-0004-98384, Sen. Robert P. (Bob) Casey, Jr. (Oct. 10, 2023).

234

Comment EEOC-2023-0004-98470, Rep. Jerrold (Jerry) Nadler and 82 Members of Congress (Oct. 10, 2023).

235

Comment EEOC-2023-0004-98339, Rep. Robert C. (Bobby) Scott, Ranking Member of the House Committee on

Education and the Workforce (Oct. 10, 2023).

The Commission has made minor changes to the regulation to clarify the rights of

covered entities and employees by providing parallel language in each subsection of § 1636.7(b).

Specifically, § 1636.7(b)(1) previously stated: “Nothing in this provision limits the rights under

the U.S. Constitution of a covered entity”; in the final regulation, it states: “Nothing in 42 U.S.C.

2000gg–5(b) or this part should be interpreted to limit a covered entity’s rights under the U.S.

Constitution.” This language now parallels the language in § 1636.7(b)(2) regarding employees’

rights.

The Commission’s Interpretation of Section 107(b) of the PWFA Applied

Under the Commission’s interpretation of section 107(b) of the PWFA, analogous to the

Commission’s interpretation of section 702(a) of the Civil Rights Act of 1964, an employer

meets the definition of a “religious corporation, association, educational institution, or society”

236

if its “purpose and character are primarily religious.”

237

When a respondent employer asserts that

it qualifies as a religious organization under section 107(b), the Commission will use the same

factors it uses to make the determination under section 702(a). These factors include, but are not

limited to: (1) whether the entity operates for a profit; (2) whether it produces a secular product;

(3) whether the entity’s articles of incorporation or other pertinent documents state a religious

purpose; (4) whether it is owned, affiliated with, or financially supported by a formally religious

entity such as a church or synagogue; (5) whether a formally religious entity participates in the

management, for instance by having representatives on the board of trustees; (6) whether the

entity holds itself out to the public as secular or sectarian; (7) whether the entity regularly

includes prayer or other forms of worship in its activities; (8) whether it includes religious

236

See 42 U.S.C. 2000e–1(a).

237

See Compliance Manual on Religious Discrimination, supra note 215, at (12-I)(C)(1) & n.58. Because the

Commission has already defined the type of employer that is covered by section 702(a), and the PWFA references

section 702(a), the Commission is maintaining this definition rather than adopting the language in the Attorney

General Religious Liberty Memorandum, supra note 218, which does not have the force of law.

instruction in its curriculum, to the extent it is an educational institution; and (9) whether its

membership is made up by coreligionists.

238

No one factor is dispositive in making this

determination.

Under the Commission’s interpretation of section 107(b), the PWFA does not fully

exempt qualifying religious organizations from making reasonable accommodations. This is

analogous to section 702(a), which likewise does not operate as a total exemption from Title

VII’s requirements.

Under section 702(a), for example, qualifying religious organizations are exempt from

Title VII’s prohibition against discrimination on the basis of religion, but, as U.S. courts of

appeals have recognized, qualifying religious organizations are still subject to the law’s

prohibitions against discrimination on the basis of race, color, sex, and national origin, and they

may not engage in related retaliation.

239

If a qualifying religious organization asserts as a defense

to a claim under the PWFA that it took the challenged action on the basis of religion and that

238

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007); Compliance Manual on

Religious Discrimination, supra note 215, at (12-I)(C)(1).

239

See Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (observing that the exemption

“does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race,

gender, or national origin”); Boyd v. Harding Acad. of Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (stating that

the exemption “does not . . . exempt religious educational institutions with respect to all discrimination”); DeMarco

v. Holy Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993) (“[R]eligious institutions that otherwise qualify as

‘employer[s]’ are subject to Title VII provisions relating to discrimination based on race, gender and national

origin.”); Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (“While the

language of § 702 makes clear that religious institutions may base relevant hiring decisions upon religious

preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the

basis of race, sex, or national origin. . . .”) (citations omitted); cf. Garcia v. Salvation Army, 918 F.3d 997, 1004–05,

1011 (9th Cir. 2019) (holding that Title VII retaliation and hostile work environment claims related to religious

discrimination were barred by the religious organization exception but adjudicating the disability discrimination

claim on the merits). The Commission recognizes that a few judges have recently suggested otherwise. See Starkey

v. Roman Catholic Archdiocese of Indianapolis, Inc., 41 F.4th 931, 946 (7th Cir. 2022) (Easterbrook, J.,

concurring); Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 590–91 (N.D. Tex. 2021). However, this is

not a common understanding of Title VII’s religious exemption. See 88 FR 12852-54.

Typically, courts have accepted an employer’s defense under this provision with regard to hiring or firing claims,

rather than terms or conditions of employment. Compare EEOC v. Miss. Coll., 626 F.2d 477, 485–86 (5th Cir. 1980)

(holding that the college may prefer a Baptist to a non-Baptist in hiring), with EEOC v. Fremont Christian Sch., 781

F.2d 1362, 1365–66 (9th Cir. 1986) (holding that the section 702(a) exemption did not apply where a religious

school provided “head of household” health insurance benefits only to single persons and married men).

section 107(b) should apply, the merits of any such asserted defense will therefore be determined

on a case-by-case basis consistent with the facts presented and applicable law.

In response to comments that discussed potential religious defenses to the PWFA’s

requirements, the Commission notes that its statutory authority to investigate alleged unlawful

employment practices under the statutes it enforces, including the PWFA, starts only after an

aggrieved individual (or a Commissioner) files a charge of discrimination against a specific

covered entity.

240

The PWFA does not provide a mechanism for the Commission to provide

legally binding responses to employer inquiries about the potential applicability of religious or

other defenses before this point. Moreover, the Commission does not believe it is capable of

providing such responses in the abstract, in the absence of a concrete factual context presented

by a specific charge of discrimination.

In the event that a charge alleging one or more violations of the PWFA

241

is filed against

a particular employer, the employer can raise religious and other defenses at any time during the

Commission’s administrative process

242

—from as early as when the employer first receives a

240

See 42 U.S.C. 2000e–5(b).

241

The procedures described in this paragraph apply to charges filed under any of the statutes that the Commission

enforces.

242

The Commission’s administrative process typically begins when an individual, referred to as the charging party,

files a charge of employment discrimination with the Commission. See 42 U.S.C. 2000e–5(b). The statute requires

that within 10 days of the date a charge is filed, the Commission inform the employer, also referred to as the respondent,

that a charge has been filed, see id., and, if appropriate, the parties are invited to participate in the Commission’s robust

voluntary mediation program. This is an opportunity for the parties to resolve the charge early and before the

Commission completes its investigation.

If there is no mediated resolution of the charge, the Commission requests a position statement from the employer and

proceeds with the investigation. An employer may raise any applicable defenses in the position statement, including

religious defenses. If the Commission determines that further investigation is not warranted, the agency will dismiss the

charge and the employee may file suit in Federal court.

Otherwise, the Commission may request additional information from the employer during the investigation. At any point

during the investigation, the employer may assert any religious defenses, including under section 107(b). The

Commission generally relies on voluntary compliance with its investigation requests, although it does have statutory

authority to examine or copy evidence relevant to its investigation. 42 U.S.C. 2000e–8(a); 42 U.S.C. 2000e–9; 29

U.S.C. 161(1)–(2).

Based on the evidence obtained during its investigation, the Commission makes a determination. The agency may

dismiss the charge and the employee may file suit in Federal court.

Notice of Charge of Discrimination, pursuant to 42 U.S.C. 2000e–5(b), or even after the EEOC

has found reasonable cause and attempted to resolve the matter through conciliation, and is

considering potential litigation.

243

Although defenses can be asserted at any time during the

EEOC’s administrative process, the Commission encourages employers to raise defenses as early

as possible after receiving a notice of a charge of discrimination. This will allow the EEOC to

promptly consider asserted defense(s) that, if applicable, would result in dismissal of the charge.

The Commission will “take great care” in evaluating the asserted religious or other defense(s)

based on the facts presented and applicable law, regardless of when in the administrative process

it is raised.

244

To further assist employers with potential religious defenses in the context of individual

charge investigations, the Commission is enhancing its administrative procedures to provide

additional information to facilitate the submission of information regarding potential religious

defenses.

245

Specifically, the Commission will revise materials accompanying the Notice of

Charge of Discrimination letter and related webpages to identify how employers can raise

If, however, the Commission makes a determination that there is “reasonable cause” to believe discrimination

occurred, it endeavors to resolve the charge through conciliation, which is an informal process through which the

Commission works with the parties in an attempt to develop an appropriate remedy for the discrimination and reach

a final resolution administratively. See 42 U.S.C. 2000e–5(b). Participation in conciliation is voluntary, and it is another

step in the statutorily-required administrative procedure where an employer may raise section 107(b) defenses. A finding

of “reasonable cause” does not lead to any fines or penalties for the employer. If conciliation is not successful, the

Commission either files a lawsuit or issues the charging party a notice of conciliation failure and closes the charge; under

the Commission’s current procedure, the notice of conciliation failure includes a notice informing the employee of their

right to file suit in Federal court. See generally 29 CFR part 1601 (Procedural Regulations).

243

Indeed, the Commission will consider religious defenses even when they are raised for the first time in the

context of an EEOC enforcement action in court. See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201

F. Supp. 3d 837, 846 (E.D. Mich. 2016) (noting that the defendant raised its RFRA defense for the first time in

answer to the EEOC’s amended complaint, which simply corrected a typographical error in the spelling of the

aggrieved employee’s first name), rev’d and remanded sub nom. EEOC v. R.G. &. G.R. Harris Funeral Homes,

Inc., 884 F.3d 560 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton Cnty., Ga., 590 U.S. 644 (2020).

244

Compliance Manual on Religious Discrimination, supra note 215, at (12-I)(C)(3) (counseling EEOC

investigators to “take great care” in situations involving the First Amendment and RFRA); see also Newsome, 301

F.3d at 229–30 (addressing a case in which the EEOC dismissed a charge where the employer offered evidence that

it fell under the religious organization exception).

245

These enhancements will apply to charges filed under any of the statutes that the EEOC enforces. Covered

entities will be able to learn about the PWFA, this rule, and the enhancements outlined in this section at EEOC

public outreach events and through the EEOC’s website and publications. See, e.g., EEOC, Outreach, Education &

Technical Assistance, https://www.eeoc.gov/outreach-education-technical-assistance (last visited Mar. 23, 2024).

defenses, including religious defenses, in response to the charge. These updates will be public

and viewable by any employer with questions or concerns about how to raise a defense,

including a religious defense, in the event that one of its employees files a charge of

discrimination. In addition, as it is currently the case, the Notice of Charge will continue to direct

employers to the EEOC Respondent Portal, where the employer can view and download the

underlying charge of discrimination and submit documents to the EEOC electronically. The

Commission will update the Respondent Portal to encourage an employer to raise in its position

statement (or as soon as possible after a charge is filed) any factual or legal defenses it believes

apply, including ones based on religion. The Portal also will direct employers to the

Commission’s website, which provides detailed instructions with examples on what a position

statement should include, which will allow the employer to easily inform the Commission of a

potential defense, including a religious defense. The Commission will update other resources to

provide additional, clear instructions about how the employer should submit factual or legal

support for any asserted defenses, including religious ones.

As appropriate, the Commission will resolve the charge based on the information

submitted in support of asserted defenses, including religious defenses, in order to minimize the

burden on the employer and the charging party. The Commission may contact the employer

and/or the charging party if it needs additional information to evaluate the applicability of any

asserted defenses. The employer or charging party may also voluntarily submit additional

information regarding the applicability of any asserted defenses and may request that the EEOC

prioritize the consideration of a particular defense that could be dispositive and obviate the need

to investigate the merits of a charge. As with the EEOC’s reasonable cause determinations, the

EEOC’s decision to close or continue investigating a particular charge is not entitled to deference

in any subsequent litigation, where a religious or other defense will receive de novo review if

raised by the employer.

246

Thus, regardless of whether the Commission agrees with the

employer’s asserted defenses, those defenses are entitled to de novo review by a court in any

subsequent litigation.

Application of Section 107(b) of the PWFA to Retaliation and Coercion Claims

Some comments specifically raised the application of section 107(b) of the PWFA to

claims regarding retaliation and coercion. The Commission’s application of section 107(b) in this

context will be informed by its application of section 702(a) of the Civil Rights Act of 1964 in

analogous circumstances.

The Commission notes that the operative language in the PWFA’s retaliation provision is

the same as the language in Title VII’s retaliation provision, and the Commission will interpret it

accordingly.

247

The coercion provision in the PWFA, 42 U.S.C. 2000gg–2(f)(2), is not in Title VII, but

similar language is in the ADA’s interference provision, and the Commission will interpret it

accordingly.

248

As set out in the Interpretive Guidance in section 1636.5(f)(2) under Prohibition

Against Coercion, the purpose of this provision is to ensure that employees are free to avail

themselves of the protections of the statute. Thus, consistent with the ADA regulation for the

essentially identical provision, the rule adds “harass” to the list of prohibitions; the inclusion of

the term “harass” in the regulation is intended to characterize the type of adverse treatment that

may in some circumstances violate the interference provision.

249

As with the ADA, the provision

246

Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974) (providing that private-sector employees have a right

to a trial de novo for consideration of their Title VII claims).

247

42 U.S.C. 2000gg–2(f)(1) (PWFA); 42 U.S.C. 2000e–3(a) (Title VII).

248

42 U.S.C. 2000gg–2(f)(2) (PWFA); 42 U.S.C. 12203(b) (ADA).

249

See 29 CFR 1630.12(b); Enforcement Guidance on Retaliation and Related Issues, at (III) (stating, with regard to

the ADA, that “[t]he statute, regulations, and court decisions have not separately defined the terms ‘coerce,’

‘intimidate,’ ‘threaten,’ and ‘interfere.’ Rather, as a group, these terms have been interpreted to include at least

certain types of actions which, whether or not they rise to the level of unlawful retaliation, are nevertheless

does not apply to any and all conduct or statements that an individual finds intimidating; it

prohibits only conduct that is reasonably likely to interfere with the exercise or enjoyment of

PWFA rights.

250

As the Commission stated in the preamble in section 1636.5(f) regarding the

coercion provision, the Commission received a few comments expressing concern that mission

statements, statements regarding religious beliefs of an employer, or statements in employee

handbooks would be seen as violating § 1636.5(f)(2). Whether a statement violates 42 U.S.C.

2000gg–2 (§ 1636.5(f)(2)) will depend on the language of the statement, but, as the examples

provided in the NPRM and in the Interpretive Guidance in section 1636.5(f)(2) Prohibition

Against Coercion show, the making of general statements regarding an employer’s mission or

religious beliefs is not the type of conduct that the Commission previously has determined would

be prohibited by this provision.

If a claim is raised regarding retaliation or coercion against a religious employer, the

Commission will apply the same type of case-by-case analysis it applies to other PWFA and

Title VII claims.

Additional Potential Defenses to the PWFA for Covered Entities

Religious Freedom Restoration Act

The Religious Freedom Restoration Act (RFRA) provides that the “[g]overnment shall

not substantially burden a person’s exercise of religion even if the burden results from a rule of

general applicability,” except when application of the burden to the person “is in furtherance of a

compelling governmental interest” and “is the least restrictive means of furthering that

compelling governmental interest.”

251

Nondiscrimination laws and policies have been found to

actionable as interference.”) (2016) [hereinafter Enforcement Guidance on Retaliation],

https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.

250

See Enforcement Guidance on Retaliation, supra note 249, at (III).

251

42 U.S.C. 2000bb–1(a), (b). If an employer raises RFRA as a defense to the Government’s enforcement of a law

and meets its burden of showing that the law substantially burdens its religious exercise, the burden then shifts to the

serve a compelling governmental interest, including where the Commission has sought to

enforce Title VII.

252

As stated in the NPRM, the Commission will carefully consider these

matters, analyzing RFRA defenses to claims of discrimination on a case-by-case basis.

253

Comments Related to RFRA

Some comments agreed with the Commission that RFRA may be a defense to PWFA

claims brought by the Commission. Some comments asserted that being required to provide

accommodations, absent undue hardship, for certain health care services to which employers

may object for religious reasons—such as abortion, IVF, surrogacy, contraception, and

sterilization—violates RFRA. These comments argued that being required to provide a

workplace accommodation to receive these services would substantially burden some employers’

ability to exercise their religious beliefs.

The Commission received several comments stating that the PWFA proposed regulation

would impose a substantial burden on employers’ religious exercise and that the Commission

lacks a compelling governmental interest in enforcing the statute, as implemented by the

regulation. In support, comments asserted that: in the Title VII context, the Federal Government

must demonstrate a very specific compelling interest when requiring a religious organization to

Government to show that the challenged law furthers a compelling governmental interest and is the least restrictive

means of furthering that compelling governmental interest, as applied to “the particular claimant whose sincere

exercise of religion is being substantially burdened.” See Holt v. Hobbs, 574 U.S. 352, 362–63 (2015) (quoting

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014)) (internal citations and quotation marks omitted).

252

See, e.g., Harris Funeral Homes, 884 F.3d at 581 (“EEOC has established that it has a compelling interest in

ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive

way to achieve that compelling interest.”); Hsu v. Roslyn Union Free Sch. Dist. No. 3, 876 F. Supp. 445, 463

(E.D.N.Y. 1995) (concluding that a school district’s policy was justified by its “compelling interest in eliminating

and preventing discrimination”), aff’d in part, rev’d in part on other grounds, 85 F.3d 839 (2d Cir. 1996). But cf.

Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 939–40 (5th Cir. 2023) (“Even if there is a compelling interest as a

categorical matter, there may not be a compelling interest in prohibiting all instances of discrimination. . . . [EEOC]

does not show a compelling interest in denying Braidwood, individually, an exemption.”).

253

Compliance Manual on Religious Discrimination, supra note 215, at (12-I)(C)(3) (counseling EEOC

investigators to “take great care” in situations involving the First Amendment and RFRA); see also Little Sisters of

the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. __, 140 S. Ct. 2367, 2383 (2020) (“[T]he

[government] must accept the sincerely held complicity-based objections of religious entities.”).

act contrary to its understanding of sex; strict scrutiny applies when there is a threat to religious

freedom by the Federal Government; the Commission should acknowledge that the PWFA

regulation would substantially burden employers’ religious exercise; the Commission should

offer its analysis of existing case law and state whether it believes it could ever have a

compelling interest in requiring an objecting religious employer to violate its religious

convictions regarding abortion; the Commission’s case-by-case view does not comport with Title

VII’s definition of religion, which includes all aspects of religious observance and practice as

well as belief; and the Commission does not have a compelling interest in denying an exception

under the PWFA to a religious employer because that would force religious parties to violate

their sincerely held religious beliefs.

Many comments addressed the application of RFRA in lawsuits that do not involve the

Government. These comments asserted that: because the Commission says RFRA may not be an

applicable defense in some cases and is no defense at all to private suits,

254

the Commission

needs to clarify how its RFRA process will operate; RFRA should be available in all cases,

including all cases where the Government substantially burdens religious exercise through the

implementation of Federal law, regardless of whether the Government is a party to the lawsuit; if

RFRA is not available in cases in which the Government is not a party, then the Commission

could decline to bring a lawsuit where a religious employer could have brought a successful

RFRA defense, and the employer would lose its rights to religious exercise; and if a RFRA

defense only is available if the Government is a party to the lawsuit, the Commission should

describe the steps it will take to ensure it does not intentionally avoid involving itself in litigation

with the intent of preventing the employer from raising RFRA as a defense.

254

See, e.g., Listecki v. Off. Comm. of Unsecured Creditors, 780 F.3d 731, 736–37 (7th Cir. 2015); Gen. Conf. Corp.

of Seventh-Day Adventists v. McGill, 617 F.3d 402, 409–12 (6th Cir. 2010). The Second Circuit has held otherwise

in the ADEA context, Hankins v. Lyght, 441 F.3d 96, 103–04 (2d Cir. 2006) (holding that an employer could raise

RFRA as a defense to an employee’s Age Discrimination in Employment Act (ADEA) claim because the ADEA is

enforceable both by the EEOC and private litigants), but the Second Circuit has questioned the correctness of

Hankins given the text of RFRA, Rweyemamu v. Cote, 520 F.3d 198, 203 & n.2 (2d Cir. 2008).

The Commission also received comments stating that the Commission must conduct an

individualized review of any defense raised under RFRA and ensure that there is a sufficiently

strong nexus between the asserted burden and a religious exercise, the religious exercise is based

on sincerely held religious beliefs, the burden is substantial, and the requested religious

exception is tailored to address the burden. Further, comments asserted that the Commission

must conduct an Establishment Clause analysis of any proposed exception.

Response to Comments Related to RFRA

As the Supreme Court has recognized, RFRA requires a fact-sensitive, case-by-case

analysis of burdens and interests.

255

The Commission takes the protections of RFRA seriously

and has instructed its staff to use “great care in situations involving both (a) the statutory rights

of employees to be free from discrimination at work, and (b) the rights of employers under the

First Amendment and RFRA.”

256

Consistent with RFRA, as part of that analysis, the

Commission will ensure when considering the application of any RFRA defense raised that it

assesses whether any religious burden imposed on the employer is substantial and whether

enforcement is the least restrictive means of furthering a compelling governmental interest, as

applied to that employer. It will further analyze any defense to ensure that any limitation on

enforcement is constitutionally permissible under the Establishment Clause.

257

Here, the Commission generally explains its understanding of the requirements of RFRA

and provides some information regarding how RFRA may apply in the context of the PWFA. As

255

See, e.g., Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 430–31 (2006) (observing

that, when applying RFRA, courts look “beyond broadly formulated interests justifying the general applicability of

government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious

claimants”); cf. Ramirez v. Collier, 595 U.S. 411, 433 (2022) (holding that the Religious Land Use and

Institutionalized Persons Act, which applies RFRA’s test for religious defenses in the prison context, “requires that

courts take cases one at a time, considering only ‘the particular claimant whose sincere exercise of religion is being

substantially burdened’” (quoting Holt, 574 U.S. at 363)).

256

Compliance Manual on Religious Discrimination, supra note 215, at (12-I)(C)(3).

257

See infra in the preamble in section 1636.7 under Response to Comments Related to First Amendment

Establishment Clause Considerations.

stated above, RFRA requires a fact-specific analysis. Thus, in a specific situation, the

information provided here may or may not apply.

258

Although RFRA applies to enforcement by the Government, in order to inform the

Commission of possible RFRA defenses and reasons the Government should not bring an

enforcement action, an employer may raise a RFRA defense at any point during the

Commission’s administrative process. Assuming the employer asserted a RFRA defense based

on a sincerely held religious belief, the Commission would first assess whether, were the

Government to bring a lawsuit to enforce the PWFA against the employer, that enforcement

would impose a substantial burden on the employer’s religious exercise.

259

The Commission

would consider a variety of factors in making that assessment.

260

258

Initially, the Commission notes that for a RFRA defense to arise in litigation brought by the Commission under

the PWFA, there would first have to be a charge of discrimination filed where the employer refused to provide an

accommodation based on its religious exercise. Then, prior to filing an enforcement action in court, the Commission

would have to investigate the charge, find reasonable cause, and decide to bring litigation. At any point during that

administrative process, the employer could assert a RFRA defense.

259

See Harris Funeral Homes, 884 F.3d at 587 (“Under Holt v. Hobbs . . . a government action that puts a religious

practitioner to the choice of engaging in conduct that seriously violates his religious beliefs or facing serious

consequences constitutes a substantial burden for the purposes of RFRA.”) (internal citations, quotation marks, and

alterations omitted).

260

See, e.g., Hobby Lobby, 573 U.S. at 720–26 (finding that a contraceptive mandate imposed a substantial burden

on religious beliefs by forcing employers to choose between providing coverage or paying “an enormous sum of

money—as much as $475 million per year” if they did not); Harris Funeral Homes, 884 F.3d at 586–90 (holding

that the employer’s religious exercise would not be substantially burdened by continuing to employ a transgender

worker); Braidwood Mgmt., 70 F.4th at 938 (finding a substantial burden by being forced to employ individuals

whose conduct violates “the company’s convictions”).

The Commission also would consider whether, as applied in the specific case, filing a

PWFA enforcement lawsuit would further the Government’s compelling interest,

261

including as

expressed by Congress.

262

Finally, the Commission disagrees with comments stating that the Commission must file

suit against those employers the Commission believes have a valid RFRA defense so that the

covered entities may avoid liability by successfully proving their RFRA defense in court.

Imposing such a requirement would infringe on the executive branch’s Article II authority to

determine which enforcement actions to bring, and the Commission will not interpret the PWFA

to impose any unconstitutional requirements.

263

The Commission concludes that the better

261

See, e.g., Hobby Lobby, 573 U.S. at 733 (“The Government has a compelling interest in providing an equal

opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are

precisely tailored to achieve that critical goal.”); Harris Funeral Homes, 884 F.3d at 591–92; Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 196 (2012) (“The interest of society in the

enforcement of employment discrimination statutes is undoubtedly important.”); Fremont Christian Sch., 781 F.2d

at 1368–69 (“By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a

‘highest priority’ . . . . Congress’ purpose to end discrimination is equally if not more compelling than other interests

that have been held to justify legislation that burdened the exercise of religious convictions.” (quoting EEOC v.

Pacific Press Publ’g Ass’n, 676 F.2d 1272, 1280 (9th Cir. 1982), abrogated on other grounds by Emp. Div., Dep’t

of Hum. Res. of Oregon v. Smith, 494 U.S. 872 (1990)); Miss. Coll., 626 F.2d 477, 488 (5th Cir. 1980) (stating, in a

Title VII subpoena enforcement action related to a race and sex discrimination charge, that “the government has a

compelling interest in eradicating discrimination in all forms”); Redhead v. Conf. of Seventh-Day Adventists, 440 F.

Supp. 2d 211, 220 (E.D.N.Y. 2006) (rejecting a RFRA defense in a Title VII sex discrimination case and stating,

“generally, Title VII’s purpose of eradicating employment discrimination is a ‘compelling government interest’”);

see also H.R. Rep. No. 117-27, pt. 1, at 32 (“Although religious employers may claim that a required

accommodation is a substantial burden on their free exercise of religion under RFRA, it is the position of the

Committee that nondiscrimination provisions are a compelling government interest and the least restrictive means to

achieve the policy of equal employment opportunity.”); cf. Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481

U.S. 537, 549 (1987) (observing that the State has a compelling interest in eliminating sex-based discrimination)

(citing Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984) (explaining that the goal of “eliminating discrimination

and assuring [citizens] equal access to publicly available goods and services . . . plainly serves compelling state

interests of the highest order”) (internal citation omitted))).

262

See H.R. Rep. No. 117-27, pt. 1, at 5 (stating under the report’s purpose and summary, “When pregnant workers

do not have access to reasonable workplace accommodations, they are often forced to choose between their financial

security and a healthy pregnancy. Ensuring that pregnant workers have access to reasonable accommodations will

promote the economic well-being of working mothers and their families and promote healthy pregnancies.”); see

also Little Sisters, 140 S. Ct. at 2392 (Alito, J., concurring) (observing that courts “answer the compelling interest

question simply by asking whether Congress has treated the [interest] as a compelling interest”) (emphasis in

original).

263

See, e.g., United States v. Texas, 599 U.S. 670, 678 (2023) (“Under Article II, the Executive Branch possesses

authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate

the law.’” (citations omitted)); id. at 679 (“[T]he Executive Branch has exclusive authority and absolute discretion to

decide whether to prosecute a case”) (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)) (internal quotation

marks omitted).

approach to situations in which it agrees with employers regarding their RFRA defenses raised

during the administrative process is to refrain from bringing an enforcement action.

264

Constitutional Considerations

The Ministerial Exception

As set out in the NPRM, the Supreme Court has recognized a ministerial exception,

derived from the religion clauses of the First Amendment, which may provide an affirmative

defense to an otherwise cognizable claim of a certain category of employees under certain anti-

discrimination laws, including the PWFA. Under the ministerial exception, a religious

organization may select those who will “personify its beliefs,” “shape its own faith and mission,”

or “minister to the faithful.”

265

The exception applies to discrimination claims involving the

selection, supervision, and removal by a religious institution of employees who perform vital

religious duties at the core of the mission of the religious institution.

266

Comments Regarding the Ministerial Exception

A few comments requested that the Commission state or clarify the scope of the First

Amendment “ministerial exception” in the final rule, including by: adding language from Our

Lady of Guadalupe School v. Morrissey-Berru to the rule;

267

stating that the exception bars all

264

Additionally, under section 706(f)(1) of Title VII, which is incorporated into the PWFA in 42 U.S.C. 2000gg–

2(a)(1), an employee may, as a matter of right, intervene in a case brought by the Commission on behalf of that

employee. Thus, even if the Commission were required to bring such an action, the employer could still face a claim

from the employee.

265

Hosanna-Tabor, 565 U.S. at 188–89.

266

Compliance Manual on Religious Discrimination, supra note 215, at (12-I)(C)(2) (citing Our Lady of Guadalupe

Sch. v. Morrissey-Berru, 591 U.S. __, 140 S. Ct. 2049, 2055, 2066 (2020)). There is some disagreement among

courts as to the applicability of the ministerial exception to hostile work environment claims. Compare Demkovich

v. St. Andrew the Apostle Par., Calumet City, 3 F.4th 968, 979 (7th Cir. 2021) (applying the ministerial exception to

a hostile work environment claim involving allegations of minister-on-minister harassment), with Elvig v. Calvin

Presbyterian Church, 375 F.3d 951, 962 (9th Cir. 2004) (finding that a hostile work environment claim was not

barred by the ministerial exception, because sexual harassment is not a protected employment decision).

267

See generally 140 S. Ct. at 2049.

PWFA claims for qualifying ministerial employees; or stating that the PWFA covers a religious

entity’s non-ministerial employees.

Response to Comments Regarding the Ministerial Exception

The Commission declines to make changes regarding its interpretation of the ministerial

exception, as the Commission’s position is consistent with the relevant Supreme Court case law

and reflects the policies set forth in this preamble. The Commission will apply the exception on a

case-by-case basis in light of the facts,

268

and in determining whether the exception applies to a

claim, the Commission follows the Supreme Court’s reasoning in Hosanna-Tabor Evangelical

Lutheran Church & School v. EEOC,

269

Our Lady of Guadalupe School v. Morrissey-Berru,

270

and other applicable decisions, reviewing the factors set out by the Court. For example, if a

religious school instructor employed by the Catholic Church as a Catechist (typically the type of

teacher who performs vital religious duties)

271

asks her employer for time to attend prenatal

appointments and the employer refuses to provide the leave because the teacher is pregnant but

not married, and raises the ministerial exception as a defense to the employee’s charge of

discrimination, the Commission (after gathering relevant facts about the applicability of that

defense) will likely apply the ministerial exception and find that the employee is not entitled to

the requested accommodation. In making such a determination, the Commission will “take all

relevant circumstances into account” and determine whether the “particular position implicate[s]

the fundamental purpose of the exception.”

272

268

See id. at 2063 (“In determining whether a particular position falls within the Hosanna-Tabor exception, a variety

of factors may be important.”).

269

See 565 U.S. at 190–94.

270

See 140 S. Ct. at 2063–69.

271

See id. at 2057, 2066.

272

See 140 S. Ct. at 2067.

First Amendment Establishment and Free Exercise Clause Considerations

The First Amendment provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.”

273

Under the Establishment

Clause of the First Amendment, the Government’s actions cannot establish religion; in other

words, “government may not, consistent with a historically sensitive understanding of the

Establishment Clause, make a religious observance compulsory.”

274

Under the Free Exercise Clause, the “Government fails to act neutrally when it proceeds

in a manner intolerant of religious beliefs or restricts practices because of their religious

nature.”

275

Where a law burdens religious exercise and is not neutral or generally applicable, it is

subject to strict scrutiny, meaning that it must advance a compelling governmental interest and

be narrowly tailored to achieve that interest.

276

By contrast, laws that merely incidentally burden

religion are ordinarily not subject to strict scrutiny, and thus do not need to be justified by a

compelling governmental interest, to defeat a Free Exercise claim, as long as they are neutral and

generally applicable.

277

Laws are not neutral and generally applicable “whenever they treat any

comparable secular activity more favorably than religious exercise.”

278

In addition, “[a] law is

not generally applicable if it invite[s] the government to consider the particular reasons for a

person’s conduct by providing a mechanism for individualized exemptions” that are entirely

discretionary.

279

273

U.S. Const. amend. I.

274

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 536–37 (2022) (citation and internal quotation marks omitted).

275

Fulton v. City of Philadelphia, 593 U.S. 522, 533 (2021) (citations omitted).

276

See, e.g., id. at 541 (citation omitted); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–

32 (1993).

277

Fulton, 593 U.S. at 533 (citing Emp’t Div., Dep’t of Hum. Res. of Ore. v. Smith, 494 U.S. 872, 878–82 (1990)).

278

Tandon v. Newsom, 593 U.S. 61, 62 (2021) (per curiam) (providing that whether two activities are comparable

must be judged against the governmental interest that justifies the law at issue and concerns the risks various

activities pose); see also Fulton, 593 U.S. at 534 (“A law . . . lacks general applicability if it prohibits religious

conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”).

279

Fulton, 593 U.S. at 533, 535 (citing Smith, 494 U.S. at 884 (1990)) (internal quotation marks omitted).

Comments Related to First Amendment Establishment Clause Considerations

As noted above, the Commission received comments stating that the Commission must

conduct an individualized review of any defense asserted under RFRA and ensure that there is a

sufficiently strong nexus between the asserted burden and a religious exercise, the religious

exercise is based on sincerely held religious beliefs, the burden is substantial, and the action

taken by the government is tailored to address the burden. Further, comments asserted that the

Commission must conduct an Establishment Clause analysis of any asserted RFRA defense.

Response to Comments Related to First Amendment Establishment Clause Considerations

The Commission agrees that when evaluating a religious employer’s RFRA defense or

any other religious defense, the Commission will consider the Establishment Clause implications

as part of its case-by-case analysis.

280

Comments Related to First Amendment Free Exercise Clause Considerations

Several comments stated that the rule could violate a covered entity’s First Amendment

right to the free exercise of religion. Some comments disputed whether the final rule is a rule of

general applicability, asserting that the PWFA is not generally applicable, e.g., because it

contains religious exemptions and excludes small employers with fewer than 15 employees.

Response to Comments Related to First Amendment Free Exercise Clause Considerations

280

As the Supreme Court has observed, “The First Amendment provides, in part, that Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof. We have said that these two Clauses

often exert conflicting pressures, and that there can be internal tension between the Establishment Clause and the

Free Exercise Clause.” Hosanna-Tabor, 565 U.S. at 181 (internal citations and quotation marks omitted).

The PWFA, like Title VII, is a neutral law of general applicability.

281

Thus, it does not

need to be justified by a compelling governmental interest and narrowly tailored to achieve that

interest under the First Amendment Free Exercise Clause.

282

The PWFA does not provide any

system of discretionary, individualized exemptions for any secular employers, and it does not

treat religious exercise any less favorably than comparable secular activities.

283

Congress, in

enacting the PWFA, as it did with Title VII, exempted employers (both secular and religious)

with fewer than 15 employees.

284

It also provided an exception for religious employers under the

rule of construction, which requires the Commission to assess whether an entity is a qualifying

religious employer under an established set of factors based in case law.

285

Thus, the PWFA does

281

See, e.g., Hosanna-Tabor, 565 U.S. at 190 (stating in dicta that the ADA’s anti-retaliation provision, which (like

Title VII) exempts certain employers for secular reasons, “is a valid and neutral law of general applicability”);

EEOC v. Cath. Univ. of Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (stating that Title VII is “a neutral law of general

application”).

282

See Fulton, 593 U.S. at 533 (citing Smith, 494 U.S. at 878–82); see also Smith, 494 U.S. at 894 (O’Connor, J.,

concurring).

283

See, e.g., Fulton, 593 U.S. at 533–34 (citing Lukumi Babalu Aye, 508 U.S. at 542–46; Smith, 494 U.S. at 884).

284

See 42 U.S.C. 2000gg(2)(B)(i), 2000e(b). The Commission rejects the assertion that simply because the PWFA

only applies to businesses with 15 or more employees, the Commission can never make out a compelling interest.

See, e.g., Harris Funeral Homes, 884 F.3d at 600 (“EEOC has shown that enforcing Title VII here is the least

restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.”). As the

Supreme Court has noted, Congress decided to limit Title VII’s coverage to firms with 15 or more employees for the

purpose of “easing entry into the market and preserving the competitive position of smaller firms.” Clackamas

Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 447 (2003) (quoting the lower court’s dissent, that

“Congress decided to spare very small firms from the potentially crushing expense of mastering the intricacies of the

antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at

compliance fail”) (citation and internal quotation marks omitted). The legislative history of Title VII supports this

proposition. See Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (outlining Title VII’s legislative history

around the factors Congress considered in enacting 42 U.S.C. 2000e(b), including the costs associated with

defending against discrimination claims), abrogated on other grounds as recognized by Eisenhauer v. Culinary Inst.

of Am., 84 F.4th 507, 524, n.83 (2d Cir. 2023). Federal statutes often include exemptions for small employers, and

such exemptions do not undermine the larger interests served by those statutes. See, e.g., FMLA, 29 U.S.C.

2611(4)(A)(i) (applicable to employers with 50 or more employees); ADEA, 29 U.S.C. 630(b) (originally exempting

employers with fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more

employees); ADA, 42 U.S.C. 12111(5)(A) (applicable to employers with 15 or more employees). The government’s

generally applicable goal of protecting small businesses from the burdens of regulatory compliance is not

comparable to the type of discretionary, individualized exemption that the Supreme Court rejected in Fulton. See

593 U.S. at 533–34.

285

See supra in the preamble in section 1636.7(b) Rule of Construction.

not provide the Commission with discretion to grant individualized exemptions, for either

secular or religious purposes.

286

First Amendment Free Speech and Expressive Association Considerations

The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech.”

287

To determine whether “particular conduct possesses sufficient

communicative elements to bring the First Amendment into play,” courts consider whether “[a]n

intent to convey a particularized message was present, and [whether] the likelihood was great

that the message would be understood by those who viewed it.”

288

The Supreme Court also has recognized a “right to associate for the purpose of engaging

in those activities protected by the First Amendment.”

289

The freedom of expressive association

includes a freedom not to associate.

290

In order for Government action to unconstitutionally

burden the right of expressive association, a group must engage in expressive association.

291

If a

group does so, then the proper inquiry is whether the Government action at issue, often the

forced inclusion of a member, would significantly affect the group’s ability to advocate public or

private viewpoints.

292

Finally, to determine whether the Government’s interest justifies the

burden, the Government’s interest implicated in its action is weighed against the burden imposed

on the associational expression.

293

286

Cf. Fulton, 593 U.S. at 536–41 (providing that the inclusion of “a formal system of entirely discretionary

exceptions” in the contractual nondiscrimination requirement at issue rendered the requirement not generally

applicable and thus subject to strict scrutiny).

287

U.S. Const. amend. I.

288

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S 405, 410–11 (1974)).

289

Jaycees, 468 U.S. at 618.

290

Id. at 622–23.

291

Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000).

292

Id. at 650.

293

Id. at 658–59.

Comments Related to First Amendment Free Speech Considerations

Several comments asserted that including infertility treatments, contraception, abortion,

sterilization, and surrogacy in the definition of “pregnancy, childbirth, or related medical

conditions” would require covered entities to provide accommodations for employees that would

violate the entities’ freedom of speech. For example, some comments stated that providing an

accommodation related to an employee’s abortion would chill the speech of covered entities by

requiring them to convey a message to employees and the public that abortion is a legitimate

medical procedure, contrary to their anti-abortion beliefs or identity, or because maintaining their

policies would put them in the position of violating the PWFA’s anti-retaliation and anti-

coercion provisions.

Response to Comments Related to First Amendment Free Speech Considerations

The Commission does not agree that the PWFA or the final rule infringes on any covered

entity’s freedom of speech. The act of making a personnel decision, such as employing or

continuing to employ an individual who has engaged in personal conduct with which an

employer disagrees, is not protected speech or expressive conduct that communicates the

employer’s agreement with the individual’s personal decisions.

294

In this business context,

providing an employee a reasonable accommodation under the PWFA during their employment

does not constitute speech or expressive conduct on the part of the employer.

295

As discussed in relation to the PWFA’s rule of construction, whether an employer’s

policies or actions could implicate the PWFA’s anti-retaliation or anti-coercion provision is a

294

See Harris Funeral Homes, 884 F.3d at 589–90 (providing that “bare compliance” with antidiscrimination laws

does not amount to an endorsement of a certain viewpoint).

295

See also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65–67 (2006) (concluding

that a law requiring that institutions of higher education allow military recruiters access equal to that provided to

other recruiters, or lose certain Federal funds, regulated conduct, not speech, and the regulated conduct was not

inherently expressive such that it was protected under the First Amendment).

highly fact-specific inquiry. For over four decades, the Commission has interpreted Title VII,

which contains an anti-retaliation provision, to protect employees from being fired for having an

abortion or contemplating an abortion, and courts have affirmed this interpretation.

296

The

Commission is not aware of any cases during these past four decades in which an employer has

challenged this interpretation on First Amendment free speech grounds. Likewise, the ADA has

language similar to the PWFA’s anti-coercion provision in its interference provision, and the

Commission is similarly unaware of any cases where an employer challenged the interference

provision on First Amendment free speech grounds. In addition, the Commission has explained

in the preamble and the Interpretive Guidance in section 1636.5(f) Prohibition Against

Retaliation the type of actions that could be violations under the anti-coercion and anti-

retaliation provisions; they do not involve protected speech.

297

Nevertheless, should the

Commission receive a charge alleging coercion or retaliation, and should the responding

employer raise constitutional concerns as a defense to the charge during the administrative

charge process, the Commission will evaluate each claim on a case-by-case basis under the

process it has outlined above.

298

Comments Related to First Amendment Expressive Association Considerations

Some comments asserted that including certain pregnancy-related health care services as

medical conditions related to pregnancy or childbirth would require covered entities to provide

accommodations for employees that would violate the entities’ First Amendment right to

expressive association. In particular, some comments stated that employers, particularly those

296

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(4)(c) & n.58; Doe, 527 F.3d at 364

(holding that Title VII, as amended by the PDA, prohibits an employer from discriminating against a female

employee because she has exercised her right to have an abortion); Turic, 85 F.3d at 1214 (finding the termination of

a pregnant employee because she contemplated having an abortion violated the PDA).

297

See § 1636.5(f).

298

See supra note 242.

whose express mission is to oppose abortion, might be required under the rule to hire, or

continue to employ, or promote, employees who have abortions in violation of an employer’s

policies.

Response to Comments Related to First Amendment Expressive Association Considerations

The Commission does not agree that the PWFA or the final rule infringes on any covered

entity’s freedom of expressive association. First, the Commission is unaware of any case holding

that enforcing Title VII violates the First Amendment’s right of free association, and, indeed, the

Supreme Court has expressly held to the contrary.

299

Second, assuming that a covered entity can

show that it engages in expressive activity, with the possible exception of certain mission-driven

organizations, it is unlikely that a covered entity also could show that simply allowing an

employee to access an accommodation would significantly affect its ability to advocate public or

private viewpoints.

300

The Commission believes its position strikes the correct balance between,

on one hand, the Government’s interest in ensuring employees affected by pregnancy, childbirth,

or related medical conditions are able to remain healthy and in their jobs and, on the other, the

employer’s ability to express its message to the public, its employees, and other stakeholders

such that its advocacy is not significantly affected by providing an accommodation.

301

Nevertheless, should the Commission receive a charge relating to an accommodation for

299

Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (holding that, as applied to a law firm partnership, Title VII

did not infringe employer’s “constitutional rights of expression or association”); see also id. (observing that

“[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by

the First Amendment, but it has never been accorded affirmative constitutional protections”) (citation and internal

quotation marks omitted).

300

Compare Boy Scouts, 530 U.S. at 655–59 (determining that retaining a gay scoutmaster would significantly affect

the organization’s expression), and Slattery v. Hochul, 61 F.4th 278, 288 (2d Cir. 2023) (holding that rape crisis

pregnancy center stated plausible claim that application of New York law prohibiting discrimination in employment

based on reproductive health decisions would severely burden its right to freedom of expressive association given

that the statute, if applied, would “forc[e] [the center] to employ individuals who act or have acted against the very

mission of its organization”), with Rumsfeld, 547 U.S. at 68–69 (explaining that a law that allows military recruiters

equal access to law schools does not force the school “to accept members it does not desire”).

301

See Rumsfeld, 547 U.S. at 69–70.

pregnancy, childbirth, or related medical conditions, and should the responding employer raise

constitutional expressive association concerns as a defense to the charge during the charge

process, the Commission will evaluate each claim on a case-by-case basis under the framework

outlined above.

302

Comments Related to Constitutional Avoidance

A few comments stated that including abortion in the definition of medical conditions

related to pregnancy and childbirth creates First Amendment free speech and religion conflicts,

and statutes should be interpreted to avoid constitutional concerns; therefore, the Commission

should exclude the possibility of an employee receiving an accommodation related to an abortion

from the regulation.

Response to Comments Related to Constitutional Avoidance

As explained supra, the Commission disagrees that the rule categorically conflicts with

the First Amendment, and thus does not agree that the canon of constitutional avoidance applies.

The Commission’s interpretation of “pregnancy, childbirth, or related medical conditions” is

consistent with its interpretation of this phrase for more than four decades in Title VII, as

amended by the PDA, a similar statute. In those decades, the Commission’s interpretation under

Title VII has never been successfully challenged on First Amendment grounds. The comments

that raised this issue did not demonstrate that abortion must be excluded to avoid an

unconstitutional interpretation. Moreover, the Commission cannot anticipate whether

constitutional issues will arise in future litigation on facts that have not yet occurred.

Comments Regarding Requests for an Exemption for a Covered Entity’s Moral Objections

302

See supra note 242.

Several comments stated that the final rule should provide an exemption for covered

entities that object to abortion and other medical conditions related to pregnancy and childbirth

based on conscience, moral, ethical, scientific, health, or medical grounds, or for any other

reason that is not associated with a religious belief. A few comments further asserted that,

because the PWFA rule of construction provides an exception for certain religious entities, the

Commission must provide an exception for similarly situated covered entities that object to

accommodations on non-religious grounds.

Response to Comments Regarding Requests for an Exemption for a Covered Entity’s Moral

Objections

To create a new, stand-alone exemption for secular entities would exceed the

Commission’s congressionally-provided authority. In enacting the PWFA, Congress restricted

coverage for only two categories of employers: (1) certain qualifying religious entities under the

rule of construction at section 107(b), “subject to the applicability to religious employment” set

forth in section 702(a) of the Civil Rights Act of 1964; and (2) certain entities, regardless of

religious affiliation, that have fewer than 15 employees. The Commission notes that an

individual’s religious beliefs may include moral and ethical beliefs,

303

and thus in individual

cases, the Commission will assess asserted accommodation requests and objections based on that

longstanding interpretation and applicable law. However, the Commission will not create

through rulemaking a new exemption for secular organizations with certain moral or ethical

beliefs, beyond the PWFA’s existing exceptions.

303

In the context of Title VII’s prohibition of discrimination against employees based on religion, the Commission

has said that “[c]ourts have looked for certain features to determine if an individual’s beliefs can be considered

religious.” To this end, “[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not

religious beliefs protected by Title VII,” but overlap between a religious and political view may be protected under

Title VII “as long as that view is part of a comprehensive religious belief system.” Compliance Manual on Religious

Discrimination, supra note 215, at (12-I)(A)(1); see also 29 CFR 1605.1.

Comments Regarding Requests for a Per Se Undue Hardship Exemption

In the alternative, several comments asserted that covered entities that do not qualify for

an exemption under the rule of construction, but that nevertheless object to abortion or other

medical conditions related to pregnancy or childbirth for religious reasons, reasons related to

their mission, or other secular reasons, should receive a per se undue hardship exemption.

Response to Comments Regarding Requests for a Per Se Undue Hardship Exemption

The Commission declines to create a per se undue hardship exemption, for several

reasons. First, the PWFA incorporates the ADA’s “undue hardship” definition, and under the

ADA, employers may assert undue hardship as a defense but must conduct an individualized

assessment when determining whether a reasonable accommodation will impose an undue

hardship.

304

Creating a per se rule that an employer’s beliefs automatically and always create an

undue hardship would be fundamentally inconsistent with this requirement that undue hardship

be assessed as a defense on a case-by-case basis, and would therefore be inconsistent with the

PWFA.

305

This is especially so where, as here, even the religious beliefs of employers that share

the same religion are not monolithic, and the specific facts and circumstances in a given situation

may affect whether the employer objects to an employee’s actions on religious grounds.

Second, nothing in the PWFA provides for an exemption that directly links the undue

hardship standard to an entity’s religious beliefs, status, or secular beliefs. On the contrary, the

statute expressly directs that the term “undue hardship” should “have the meaning[] given such

304

88 FR 54734.

305

42 U.S.C. 2000gg(7). The final rule creates a small category of modifications that will, “in virtually all cases,” be

reasonable accommodations that do not impose an undue hardship. Importantly, in creating this category, the

Commission did not alter the definition of “undue hardship” or deprive a covered entity of the opportunity to bring

forward facts to demonstrate that a proposed accommodation imposes an undue hardship for its business under its

own particular circumstances, even when one of the four simple modifications in § 1636.3(j)(4) is involved. Given

the differences in religious beliefs and the impact of an accommodation that may violate those beliefs, it would not

be possible for the Commission to determine that these beliefs would “in virtually all cases” cause an undue

hardship.

term[] in [the ADA] and shall be construed as such [term is] construed under such Act and as set

forth in the regulations required by this division.”

306

Third, the factors used to assess an undue hardship defense typically focus on measurable

impacts on business operations. Under the PWFA rule, “undue hardship” means an action

requiring significant difficulty or expense, when considered in light of several factors: (i) the

nature and net cost of the accommodation needed under the PWFA; (ii) the overall financial

resources of the facility or facilities involved in the provision of the reasonable accommodation,

the number of persons employed at such facility, and the effect on expenses and resources; (iii)

the overall financial resources of the covered entity, the overall size of the business of the

covered entity with respect to the number of its employees, and the number, type and location of

its facilities; (iv) the type of operation or operations of the covered entity, including the

composition, structure, and functions of the workforce of such entity, and the geographic

separateness and administrative or fiscal relationship of the facility or facilities in question to the

covered entity; and (v) the impact of the accommodation upon the operation of the facility,

including the impact on the ability of other employees to perform their duties and the impact on

the facility’s ability to conduct business.

307

As explained by Congress, “Like the ADA, the

PWFA seeks to balance the interests of the employer and employee and, although there may be

some costs associated with making a reasonable accommodation, the ‘undue hardship’ standard

limits the employer’s exposure both to overly burdensome accommodation requests and lawsuits

that would attempt to hold the employer liable for failing to provide a prohibitively expensive

accommodation.”

308

The Commission has stated that under the ADA, “the ‘undue hardship’ provision takes

into account the financial realities of the particular employer or other covered entity. However,

306

42 U.S.C. 2000gg(7).

307

88 FR 54769; § 1636.3(j).

308

H.R. Rep. No. 117-27, pt. 1, at 29.

the concept of undue hardship is not limited to financial difficulty. ‘Undue hardship’ refers to

any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that

would fundamentally alter the nature or operation of the business.”

309

Of note, cases interpreting

the impact of a reasonable accommodation on other employees or the facility’s ability to conduct

business have generally been about distribution of workloads, business operational needs, and

elemental changes to the day-to-day operations of a business, not the moral views of coworkers

or employers.

310

That said, the Commission will, as it currently does, consider all assertions of

the undue hardship defense on a case-by-case basis, including whether granting a particular

reasonable accommodation would “fundamentally alter the nature of the business.”

Additionally, in determining whether there is disruption to the covered entity’s business

under the ADA, the Commission has stated with regard to disabilities that an employer will be

unable to “show undue hardship if the disruption to its employees [is] the result of those

employees’ fears or prejudices toward the individual’s disability and not the result of the

provision of the accommodation. Nor [will] the employer be able to demonstrate undue hardship

by showing that the provision of the accommodation has a negative impact on the morale of its

309

29 CFR part 1630, appendix, 1630.2(p) (citing S. Rep. No. 101-116, at 35 (1989); H.R. Rep. 101-485, pt. 2, at 67

(1990)).

310

See, e.g., Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (providing that an accommodation that

would result in other employees having to work harder or longer hours is not required; slowing the production

schedule or assigning the plaintiffs lighter loads would fundamentally alter the nature of the defendant’s warehouse

operation, a change not required by law) (citing 29 CFR 1630.2(p)(2)(v) and 29 CFR part 1630, appendix,

1630.2(p)); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (determining that, where the

employer had no straight day-shift chemical operator positions, moving the plaintiff to such a shift would place a

heavier burden on the rest of the operators in the plant and was not required under the ADA); Mears v. Gulfstream

Aerospace Corp., 905 F. Supp. 1075, 1081 (S.D. Ga. 1995) (concluding that an accommodation that would require

employees from six different departments to deliver invoices to the plaintiff adversely impacted other employees’

ability to do their jobs and was an undue burden), aff’d, 87 F.3d 1331 (11th Cir. 1996); Bryant v. Caritas Norwood

Hosp., 345 F. Supp. 2d 155, 171 (D. Mass. 2004) (shifting responsibility for an essential function, all heavy lifting,

to coworkers would have a deleterious impact on the ability of coworkers to do their own jobs); Fralick v. Ford, No.

2:12-CV-1210, 2014 WL 1875705, at *7 (D. Utah May 9, 2014) (permitting the plaintiff to work fewer than 60

hours per week was found to “fundamentally alter the nature of” the finance manager position and therefore was not

a reasonable accommodation); cf. Morrill v. Acadia Healthcare, No. 2:17-CV-01332, 2020 WL 1249478, at *8 (D.

Utah Mar. 16, 2020) (determining that the defendant failed to establish that prior equitable distribution of a mopping

task amongst all employees, as a reasonable accommodation, impeded functioning of the business or harmed

coworkers).

other employees but not on the ability of these employees to perform their jobs.”

311

As the

definition of “undue hardship” under the PWFA follows the ADA, the same rules will apply. An

employer will not be able to demonstrate undue hardship under the PWFA if the disruption to its

employees was the result of those employees’ fears or prejudices. Nor would the employer be

able to demonstrate undue hardship by showing that the provision of the accommodation has a

negative impact on the morale of its other employees but not on the ability of these employees to

perform their jobs.

Ultimately, an employer may assert an undue hardship defense to any PWFA claim. An

employer may be able to show undue hardship if the provision of a particular accommodation

results in an impact that is unduly costly, extensive, substantial, or disruptive, or that would

fundamentally alter the nature or operation of the business.

312

As with all undue hardship

assessments, an employer would need to show individualized evidence of undue hardship.

Other Comments and Response to Comments Regarding Religious and Conscience

Considerations

Several comments stated that the inclusion of abortion as a related medical condition

revealed that the Commission harbored anti-Catholic bias, and others claimed that the

Commission would target Catholic employers for enforcement.

As explained above, the Commission interprets the PWFA’s provision regarding

pregnancy, childbirth, or related medical conditions consistent with the PWFA’s text and the

Commission’s interpretation of identical language in Title VII, an interpretation adopted more

than 40 years ago. The Commission disagrees that interpreting the PWFA in a manner consistent

with the statutory text and the agency’s decades-long interpretation of Title VII is suggestive of

311

See 29 CFR part 1630, appendix, 1630.15(d).

312

See 29 CFR part 1630, appendix, 1630.2(p).

any anti-Catholic bias or that the Commission otherwise harbors any bias. The Commission’s

enforcement decisions are based on whether the facts of the charge show reasonable cause to

believe discrimination occurred. Further, the Commission’s history under Title VII reflects that

the Commission brings cases that protect employees who are being harassed about their decision

not to have an abortion and that protect the religious views of employees who oppose abortion.

313

Second, some comments asserted that an employer’s potential obligation under the

PWFA to provide an accommodation for abortion could violate the religious rights of other

employees, such as human resources employees, who would have to explain to an employee that

a reasonable accommodation is available in these circumstances and process the paperwork. The

Commission has addressed steps employers may take to respond to conflicts with religious

beliefs in these circumstances in its Compliance Manual on Religious Discrimination.

314

Third, some comments stated that if employees decide to work for a religious employer,

then they must abide by the employer’s beliefs or risk consequences. The Commission made no

changes based on these comments. As explained above, the PWFA provides for defenses for

religious organizations and is subject to certain other constitutional and statutory exceptions. But

none of those defenses or exceptions remove all rights from employees who are employed by

religious employers.

1636.8 Severability

313

See, e.g., EEOC v. Big Lots Stores, Inc., No. 9:08-CV-177, 2009 WL 10677352, at *6 (E.D. Tex. Oct. 6, 2009)

(alleging, as part of the plaintiff’s harassment claim, that the harasser urged the plaintiff to have an abortion). Other

suits brought by the EEOC regarding abortion pertained to the EEOC protecting the religious views of employees.

See, e.g., EEOC v. Univ. of Detroit, 904 F.2d 331, 335 (6th Cir. 1990) (suit brought by EEOC on behalf of an

employee who did not want to pay union dues because the dues were used to support political action in favor of

abortion, which the employee disagreed with on religious grounds); EEOC v. Am. Fed’n of State, Cnty. & Mun.

Emps., AFL-CIO, 937 F. Supp. 166, 167 (N.D.N.Y. 1996) (addressing a lawsuit brought by EEOC on behalf of an

employee who did not want to pay union dues because the dues were used to support political action in favor of

abortion and the death penalty, which the employee disagreed with on religious grounds).

314

Compliance Manual on Religious Discrimination, supra note 215, at Examples #44 & #45.

In the final rule, the Commission has added that the severability provisions express the

Commission’s intent as to severability. Further, the Commission clarified that its intent regarding

severability applies to the Interpretive Guidance as well and has included this language in the

Interpretive Guidance in section 1636.8 Severability.

As stated in the Interpretive Guidance in section 1636.8 Severability, pursuant to 42

U.S.C. 2000gg–6, in places where the regulation uses the same language as the statute, if any of

those identical regulatory provisions, or the application of those provisions to particular persons

or circumstances, is held invalid or found to be unconstitutional, the remainder of the regulation

and the application of that provision of the regulation to other persons or circumstances shall not

be affected. For example, if § 1636.4(d) (which uses the same language as 42 U.S.C. 2000gg–

1(4) and prohibits a covered entity from requiring a qualified employee to take leave as a

reasonable accommodation if there is another reasonable accommodation that can be provided)

were to be found invalid or unconstitutional, it is the intent of the Commission that the remainder

of the regulation shall not be affected. The Commission would continue to enforce the statute

but, in this hypothetical example, would not consider it a violation if an employer required an

employee to take leave as a reasonable accommodation when there was another reasonable

accommodation available.

Where the regulation or the Interpretive Guidance provides additional guidance to carry

out the PWFA, including examples of reasonable accommodations, it is the Commission’s intent

that if any of those provisions or the application of those provisions to particular persons or

circumstances were to be held invalid or found to be unconstitutional, the remainder of the

regulation or the Interpretive Guidance and the application of that provision of the regulation or

the Interpretive Guidance to other persons or circumstances shall not be affected. For example, if

a court were to determine that a certain medical condition such as a pelvic prolapse is not found

to be a “related medical condition” in a specific case, the Commission intends other conditions

could still be determined to be “related medical conditions,” including pelvic prolapse in another

case, depending on the facts.

PREAMBLE TO THE FINAL ECONOMIC ANALYSIS

Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation

and Regulatory Review), and 14094 (Modernizing Regulatory Review)

Summary of the Commission’s Preliminary Economic Analysis of Impacts: Costs

According to the Commission’s preliminary economic analysis, the proposed rule would

impose two quantifiable costs on employers: the annual cost of providing pregnancy-related

reasonable accommodations as a result of the statute and the rule, and the one-time cost of

becoming familiar with the rule. In all cases, the Commission relied on publicly available data

for its estimates.

315

To estimate the annual cost of providing pregnancy-related reasonable accommodations

as a result of the statute and the rule, the Commission first estimated the total number of

employees who were not independently entitled to PWFA-type accommodations under an

analogous State law, which the Commission calculated is 65.11 million employees.

The Commission then estimated the number of such individuals who will be entitled to a

reasonable accommodation under the PWFA. To do so, the Commission first assumed that the

number of such individuals will be approximately the same as the number of individuals who

actually become pregnant during that year. Again, based on publicly available data, the

Commission estimated that 33 percent of the 65.11 million employees who are not independently

entitled to PWFA-type accommodations under an analogous State law are capable of becoming

pregnant, and that of these, 4.7 percent will actually become pregnant in a given year. Applying

these percentages yielded a total estimate of one million individuals who (a) were not

315

For the Commission’s preliminary economic analysis, see 88 FR 54754–65.

independently entitled to PWFA-type accommodations under an analogous State law, and (b)

will actually become pregnant during a given year. Finally, the Commission estimated that

between 23 percent (“lower bound estimate”) and 71 percent (“upper bound estimate”) of these

one million individuals (between 230,000 and 710,000 individuals) will require a pregnancy-

related reasonable accommodation.

To calculate the associated costs, the Commission first estimated that the

accommodations needed by 49.4 percent of the individuals above will have zero cost, leaving

between 116,000 and 360,000 individuals needing accommodations with non-zero cost. It then

estimated that each of the accommodations needed by these individuals would cost an average of

$300 distributed over 5 years, or $60 annually. Multiplying these numbers together yielded final

estimated annual costs of between $6 million and $18 million for private employers; between

$800,000 and $2.4 million for State and local government employers; and between $300,000 and

$800,000 for Federal employers.

Comments and Response to Comments Regarding the Estimated Percentage of Individuals

Capable of Becoming Pregnant Who Will Actually Become Pregnant in a Given Year

As explained above, in the NPRM, the Commission estimated that 4.7 percent of

individuals who are capable of becoming pregnant will actually become pregnant in a given

year.

316

Some comments stated that this estimate is too low because the Commission based its

estimate on research that tracked the percentage of women participants who gave birth in a given

year. As such, the 4.7 percent estimate did not include individuals who became pregnant in a

given year but did not give birth, including individuals who had miscarriages, stillbirths, or

abortions. Because this figure was used to calculate the number of reasonable accommodations

needed, the comments further reasoned, the cost estimates did not take into account any

316

Id. at 54757.

reasonable accommodations needed by individuals who had miscarriages, stillbirths, or

abortions.

The Commission agrees that the research it relied upon did not take account of

individuals who became pregnant during a given year but who did not give birth, and therefore

that its previous estimate of 4.7 percent was too low. To correct the shortcoming, the

Commission has relied upon Centers for Disease Control (CDC) research showing that, between

2015 and 2019, live births in the United States accounted for 67% of all pregnancies among

women aged 15–44 years on average.

317

Assuming that the ratio of live births to total

pregnancies among women of reproductive age in the labor force is the same as among all 15–44

years old women, the Commission thus estimates that the percentage of individuals capable of

becoming pregnant who will actually become pregnant in given year is 0.047 ÷ 0.67 = 0.071

(rounded up), or 7.1 percent. This revised estimate is used in the revised economic analysis

below.

Comments and Response to Comments Regarding the Percentage of Pregnant Employees

Needing a Reasonable Accommodation Under the PWFA

As explained above, in the NPRM, the Commission estimated that between 23 percent

(lower bound estimate) and 71 percent (upper bound estimate) of individuals who are actually

pregnant in a given year will need a reasonable accommodation under the PWFA.

318

The report

that the Commission used to arrive at these estimates stated that 71 percent of pregnant

individuals surveyed needed more frequent breaks, such as extra bathroom breaks; 61 percent

needed a change in schedule or more time off; 53 percent needed a change in duties; and 40

317

Lauren M. Rossen et al., U.S. Dep’t of Health & Hum. Servs., Ctrs. for Disease Control & Prevention, Nat’l Ctr.

for Health Stat., Updated Methodology to Estimate Overall and Unintended Pregnancy Rates in the United States 15

(2023), https://stacks.cdc.gov/view/cdc/124395.

318

88 FR 54758.

percent needed some other type of workplace adjustment.

319

The Commission chose the highest

of these numbers (71 percent) as its upper bound estimate of the percentage of pregnant

employees needing accommodations.

The Commission received a comment stating that the report cited by the Commission

does not support the use of 71 percent as an upper bound estimate of the percentage of pregnant

individuals needing an accommodation because the report established that 71 percent of the

pregnant individuals surveyed needed additional breaks, but did not state whether any of the

other 29 percent of pregnant individuals surveyed needed a different type of accommodation

(such as a change in schedule or a change in duties). If so, then more than 71 percent of pregnant

individuals surveyed needed at least one accommodation.

The report the Commission relied upon to set its upper and lower bound estimates did not

state whether any of the 29 percent of individuals who did not need additional breaks needed a

different sort of accommodation. It was therefore not possible for the Commission to determine,

on the basis of this report, the percentage of employees surveyed who needed at least one

accommodation. The comment objecting to the Commission’s use of the 71 percent estimate did

not provide additional data for the Commission to consider, and the Commission could not

independently locate any more precise information. The Commission therefore must rely on

reasonable assumptions to set its upper bound estimate of the percentage of pregnant employees

needing accommodation.

Although it is possible that some of the 29 percent of pregnant individuals who did not

need additional breaks needed a different type of accommodation, the Commission continues to

assume for purposes of the economic analysis that the individuals who needed a different type of

pregnancy-related accommodation are a subset of those who needed additional breaks. In the

Commission’s opinion, it is unlikely that a pregnant individual who does not need additional

319

Eugene R. Declercq et al., Listening to Mothers III: New Mothers Speak Out 36 (2013),

https://www.nationalpartnership.org/our-work/resources/health-care/maternity/listening-to-mothers-iii-new-

mothers-speak-out-2013.pdf.

breaks would need a less common type of accommodation such as a change in schedule or a

change in duties. Additionally, many of the 71 percent of pregnant individuals surveyed who

needed additional breaks may be entitled to them under the ADA, Title VII, or employer

policies, and therefore the 71 percent figure likely overstates the number of individuals who will

receive those breaks specifically as a consequence of the PWFA. The Commission is therefore

confident that 71 percent is a reasonable estimate of the proportion of pregnant individuals

needing accommodation under the PWFA given the paucity of data available at the time of this

rulemaking.

The same comment objected to the Commission’s use of 23 percent as a lower bound

estimate of the percentage of pregnant employees who will need an accommodation under the

rule. The Commission relied on the same report discussed immediately above to arrive at this

estimate. Based on data in this report, the Commission calculated that 32 percent of pregnant

individuals surveyed needed, but did not receive, more frequent breaks, such as extra bathroom

breaks; 20 percent needed, but did not receive, a change in schedule or more time off; 23 percent

needed, but did not receive, a change in duties; and 18 percent needed, but did not receive, some

other type of workplace adjustment.

320

The Commission averaged these numbers to arrive at a

lower bound estimate of 23 percent.

321

According to the comment, the Commission’s calculations established that at least 32

percent of pregnant employees surveyed needed, but did not receive, at least one pregnancy-

related accommodation (specifically, additional breaks). The comment further argued that the

Commission failed to offer any justification for the decision to average the four figures.

The Commission agrees with the comment that using the highest of the four figures (32

percent) is the better approach. As explained above, the report establishes that 32 percent of

320

Id.

321

88 FR 54758.

pregnant employees surveyed needed, but did not receive, at least one type of pregnancy-related

accommodation. The Commission therefore has raised its lower bound estimate from 23 percent

to 32 percent in the analysis below.

Comments and Response to Comments Regarding the Estimated Average Cost of an

Accommodation

As stated above, in its previous analysis, the Commission estimated that 49.4 percent of

needed pregnancy-related accommodations will have no cost, and that the average cost of the

remaining 50.6 percent will be $300 distributed over 5 years, or $60 annually.

322

One comment stated that this estimate was too low because it did not include costs

associated with having a vacant position and with looking for new hires, both of which may be

necessary when a pregnant employee takes leave. The comment emphasized that these costs

affect both customers and other staff members.

The Commission declines to raise the estimated average cost of an accommodation in

response to this comment. To estimate costs responsibly, the Commission must rely on existing

data. According to the best available data, the average cost of a non-zero-cost reasonable

accommodation provided pursuant to the ADA is $300.

323

Leave is an accommodation that is

available under the ADA. The costs associated with leave, including the kinds of costs identified

by the comment, were therefore presumably included in the data used to generate the $300

average. Additionally, if an employer did not provide leave to the employee and simply

terminated the employee, the employer would still face the costs of having a vacant position and

looking for new hires. To the extent that an accommodation allows the pregnant employee to

322

Id. at 54759.

323

Id.

stay with the employer, the employer could realize cost savings because it will not have to hire

and train new employees.

324

Comments and Response to Comments Regarding Alleged Additional Costs: Abortion

Many comments stated that the economic analysis should be revised to incorporate not

only costs arising from the provision of abortion-related reasonable accommodations, but also

the costs of abortions themselves together with some of their alleged downstream consequences.

Some comments suggested adding the costs of abortions to the analysis because they

mistakenly understood the proposed rule as requiring employers to bear those costs. For

example, some comments stated that the proposed rule required employers to pay for abortion

services or to pay for associated travel and lodging expenses as reasonable accommodations.

Because the proposed rule did not, and the final rule does not, require covered employers to bear

these costs, the Commission declines to amend the economic analysis to incorporate these costs

to employers.

In most cases, however, comments suggesting inclusion of abortion-related costs

identified costs that do not apply directly to employers. For example, some of these comments

stated that the estimated cost of the rule should be increased by the value of the years of life lost

by the individuals who were never born due to abortion. Others stated that the estimated cost of

the rule should be revised to include health care costs that the comments alleged would be

incurred by individuals who undergo abortion care. Other comments stated that the estimate

should include certain large-scale societal costs that they linked to abortion. Several of these

comments cited a 2022 report by Joint Economic Committee Republicans.

325

The Commission declines to change its analysis in response to these comments. The

alleged cost of abortion and its downstream consequences cannot properly be attributed to the

324

Id. at 54754.

325

Joint Economic Committee Republicans, The Economic Cost of Abortion (2022),

https://www.jec.senate.gov/public/_cache/files/b8807501-210c-4554-9d72-31de4e939578/the-economic-cost-of-

abortion.pdf.

final rule and statute simply because abortion-related accommodations are available under the

PWFA.

326

Neither the statute nor the final rule has an impact on the costs that commenters allege

are associated with abortion. Indeed, the comments themselves appear to acknowledge that the

purported costs imposed by abortion are independent of the rule.

327

The Commission recognizes that, under the statute and final rule, some individuals will

obtain reasonable accommodations that they may not have otherwise obtained, possibly

including leave as a reasonable accommodation related to an abortion.

328

But it does not follow

that any of these individuals will have abortions because they were able to obtain an

accommodation. It therefore does not follow that the costs associated with the abortions

themselves should be included in the economic analysis.

A small number of comments argued that the proposed rule will increase the number of

abortions performed, and that the economic analysis should include costs associated specifically

with this increase. According to these comments, to calculate the cost of the final rule, the

Commission must first determine the proportional economic impact of a single abortion and then

multiply that figure by the number of additional abortions performed as a result of the rule.

The Commission declines to take this approach because the comments did not provide

any evidence, and the Commission is not aware of such evidence, to support the conclusion that

the number of abortions will increase as a consequence of the statute and the final rule.

326

Many of the comments stating that the Commission should account for the cost of abortion and its downstream

consequences described the rule as containing an “abortion mandate” or as “encouraging” abortion. This is a

mischaracterization of the rule. Rather than requiring or encouraging abortion, this rule simply requires employers to

provide reasonable accommodations to the known limitations of employees under some circumstances.

327

The $6.9 trillion in annual abortion-related costs identified by Joint Economic Committee Republicans in their

2022 report, for example, were said to have occurred in 2019—well before the effective date of the statute or final

rule. These costs should therefore be considered part of the pre-statutory baseline, rather than new costs attributable

specifically to the statute and final rule.

328

The Commission notes that it is possible that the availability of abortion-related reasonable accommodations—

such as leave—may have additional effects on the circumstances of an abortion, for example by enabling the

individual to have the abortion at an earlier time; to elect a different method of abortion; to have the abortion at a

nearby clinic instead of traveling to a more distant clinic; or to have the abortion performed by a reputable provider.

The Commission was unable to incorporate these cost savings into the quantitative analysis, however, due to lack of

data.

A few comments asserted that the number of abortions will increase because the rule, by

making abortion-related accommodations available, will make pregnant employees

“uncomfortable” about bringing their pregnancies to term. These commenters did not provide

support for this proposition, however. Other comments stated that the rule will increase the

number of abortions because some employers may prefer that their employees terminate their

pregnancies rather than bring their pregnancies to term, and, therefore, these employers may

pressure their employees into having abortions by refusing to provide any pregnancy-related

accommodations other than leave to obtain an abortion. This argument is unpersuasive because

such refusal would be unlawful under the PWFA. An employer could not satisfy its PWFA

obligations by providing leave to have an abortion to an individual who requests additional

bathroom breaks due to pregnancy, for example, because such leave would not be an effective

accommodation under those circumstances. In addition, Title VII prohibits employers from

coercing employees into having abortions because it prohibits them from taking an adverse

action against an individual because of the individual’s decision to have—or not to have—an

abortion.

329

Again, the Commission recognizes that, under the statute and the final rule, an employee

who has decided to have an abortion may request and receive an abortion-related

accommodation, absent undue hardship. But it does not follow from this fact alone that the

individual has decided to have the abortion because of the rule. The assumption implicit in

comments—that some employees will decide to have abortions because the final rule and statute

make abortion-related accommodations available—is speculative.

330

Research shows that

individuals who are unable to access abortion care typically are unable to do so for multiple

329

Enforcement Guidance on Pregnancy Discrimination, supra note 31, at (I)(A)(4)(c).

330

To support the assertion that the costs of an abortion are attributable to the final rule and statute, research would

need to show that the abortion-related accommodation provided under the rule—in most cases leave—is a but-for

cause of the abortion, and that the individual does not have independent access to the leave under a different law or

policy.

reasons, none of which are determinative.

331

Because the Commission is unaware of any data

showing specifically that access to PWFA-type accommodations will increase the number of

abortions performed, it declines to add the associated costs to its analysis.

332

Comments and Response to Comments Regarding Alleged Additional Costs: Litigation

Some comments stated that the rule would increase costs for employers by increasing

litigation. Some of these provided only a very brief justification for the claim. Some comments,

for example, claimed that the rule would increase litigation because it is “expansive” or because

the range of accommodations required is broad. One comment stated that the rule is likely to

invite litigation because it is likely that a different Presidential administration will change this

policy. These comments did not include data or cite any supporting research.

One comment, signed by several Attorneys General from States that have PWFA-type

statutes, supports the opposite conclusion:

Nor have the PWFA-analogue States experienced a marked increase in litigation

following enactment of their PWFA/Break Time law analogues. In Washington State, all

but 2 of the 650 pregnancy accommodation intakes received by the Attorney General’s

Office resolved without the need to file a lawsuit. In New York State, which enacted its

PWFA analogue in 2016, the vast majority of discrimination complaints filed with the

New York Division of Human Rights involve allegations of employment discrimination,

yet complaints relating to reasonable accommodations for pregnancy-related conditions

account for at most .03% of all employment discrimination filings. Moreover, 86% of the

employment discrimination cases that involve reasonable accommodations for a

pregnancy-related condition resolve prior to an agency hearing. The pre-hearing

resolution numbers are similar in Connecticut. In Oregon, only about 1.5% of cases filed

with the Civil Rights Division of the state’s Bureau of Labor and Industries involve

pregnancy or post-partum accommodation issues, a good portion of which are voluntarily

resolved. . . . And in Illinois, only 1% of charges filed with the Department of Human

Rights involved pregnancy-related charges seeking an accommodation. A study in

California, which enacted its state PWFA in 2000, showed the total number of pregnancy

331

See, e.g., Jenna Jerman et al., Barriers to Abortion Care and Their Consequences for Patients Traveling for

Services: Qualitative Findings From Two States, 49 Persps. on Sexual & Reprod. Health 95, 98–99 (2017).

332

The Commission notes that, even if data could be found showing that the final rule and statute will increase the

number of abortions that are performed, the Commission would still need to engage in considerable speculation in

order to estimate the associated costs. Although some comments cited research purporting to measure costs imposed

by abortion on individuals who undergo abortion care and on society as a whole, the research did not establish a

consensus on this issue. See generally Ushma D. Upadhyay et al., Intended Pregnancy After Receiving Vs. Being

Denied a Wanted Abortion, 99 Contraception 42 (2019).

discrimination charges filed with the state human rights agency actually decreased after

the law was enacted.

333

The Commission also disagrees with the claim that its definition of “pregnancy,

childbirth, or related medical conditions” is expansive and will increase litigation, or the

characterization of its definition as an example of something that will lead to litigation because

another Presidential administration will change it. As explained in the preamble to the final rule,

“pregnancy, childbirth, or related medical conditions” is language from Title VII, and the

Commission’s interpretation of that phrase in the PWFA is consistent with how courts and the

Commission have interpreted that phrase in Title VII. Moreover, the interpretation of

“pregnancy, childbirth, or related medical conditions” in the PWFA is consistent with the

interpretation the Commission has had in many different Presidential administrations. Finally,

given the long-standing definition of “pregnancy, childbirth, or related medical conditions” in

Title VII, changing it for the PWFA also would have the potential to create litigation.

Some comments stated more specifically that interpreting the term “related medical

conditions” to include abortion will cause litigation because employers that comply by providing

abortion-related leave as a reasonable accommodation may be found liable for pregnancy

discrimination. For example, one comment stated that if an employer provided an employee

sufficient leave to travel out of the State to have an abortion but denied a request by a pregnant

employee who did not want an abortion for the same amount of leave to see an out-of-State

obstetrician, instead only providing an amount of leave sufficient to visit an in-State obstetrician,

the employer could face a claim that it is discriminating against women who do not get

abortions.

The Commission disagrees that provision of abortion-related leave as a reasonable

accommodation could give rise to liability for pregnancy discrimination under the circumstances

described. First, if the employer is providing the leave as a reasonable accommodation, then it is

333

Comment EEOC-2023-0004-98337, New York State Attorney General, at 5 (Oct. 10, 2023).

not providing either employee with “benefits.” Rather, it is providing them with reasonable

accommodations to which they are entitled under the law.

Second, the two kinds of leave are not “unequal.” With respect to both individuals, the

employer is providing the amount of leave necessary to address the individual’s known

pregnancy-related limitation. It is often the case that the cash value of one reasonable

accommodation is less than that of another. For example, if an employer provides one pregnant

individual a reasonable accommodation of drinking water because that is what the individual

needs, and provides a second pregnant individual with a chair to sit on because that is what the

second pregnant individual needs, the employer is not discriminating against the first individual

just because a chair costs more than permission to drink water—both individuals have been

given reasonable accommodations appropriate to their known pregnancy-related limitations.

Because the comments discussed above did not provide evidence to support the

conclusion that promulgation of the rule will invite increased litigation, the Commission declines

to incorporate litigation-related costs into the final economic analysis.

Comments and Response to Comments Regarding Additional Costs: Male Employees

Some comments stated that it was unclear whether the rule entitled men to pregnancy-

related accommodations (including, for example, male infertility treatment), but that, if the rule

entitled men to such accommodations, these costs should be reflected in the analysis. The

Commission declines to incorporate these costs into the analysis because, as explained in the

preamble to the final rule, the definition of “pregnancy, childbirth, or related medical conditions”

in the final rule only encompasses medical conditions which relate to pregnancy or childbirth,

“as applied to the specific employee or applicant in question.”

Comments and Response to Comments Regarding Alleged Additional Costs: Other Costs

One comment stated that the Commission’s economic analysis should account for costs

arising from the loss of free speech and free exercise rights. The Commission does not agree that

the regulation creates such a loss and has explained in the preamble to the final rule why free

speech and religious exercise are not negatively affected by and are, instead, protected by the

rule.

A few comments stated that the Commission should account for the reduction in hiring of

women based on the “expansive” accommodation requirements. The Commission does not agree

that this is a cost it should take into account for the economic analysis. First, discrimination

against women because they need an accommodation, or may need an accommodation, under the

PWFA violates the PWFA and potentially Title VII. Second, these comments did not provide

evidence supporting the conclusion that employers will hire fewer women as a result of the rule

and underlying law.

One comment stated that the Commission’s economic analysis, which did not consider

accommodation costs for States with their own PWFA-type statutes, did not account for the fact

that these State statutes do not permit accommodations for abortions. This comment did not

support this statement with data or case law, and the Commission was unable to find any

independent evidence of any such restriction.

334

Additionally, as noted in the preamble to the

final rule, an employee may need an abortion for a variety of reasons, which could affect the

ability of the employee to use the State statute for an accommodation.

One comment stated that the economic analysis should include costs related to severance,

retirement, and labor shortages, and, additionally, that it should include costs arising from the

decline in private firms’ participation in the national economy. The Commission declines to

include these costs because the comment provided no data supporting a connection between

334

Some comments stated more generally that the impact analysis should account for the fact that some State

PWFA-type laws may not be identical to the PWFA, and therefore that such States may face slightly additional costs

for reasonable accommodations required by the PWFA but not by the pre-existing State law. These comments failed

to identify whether or how the interpretations of the State law differ from the PWFA and to cite or provide data that

would support any changes.

provision of pregnancy-related reasonable accommodations, on the one hand, and an employee’s

decision to leave the workforce or to decline to participate in market activities, on the other hand.

The Commission further notes that it received countervailing comments on this issue, suggesting

that the rule will enable covered entities to prevent individuals from leaving the workforce by

making pregnancy-related accommodations available to those who need them.

One comment stated that the Commission should consider the alternative of defining

“related medical conditions” to exclude abortion. As explained in the final rule, the

Commission’s interpretation is consistent with the PWFA’s text, and for over 40 years, the

Commission and courts have interpreted the phrase “pregnancy, childbirth, or related medical

conditions” in Title VII to include abortion. The Commission concludes that it is unnecessary to

consider this alternative for the economic analysis.

One comment stated that, in States that have laws like the PWFA, employees are more

likely to ask for and receive accommodations, and in States where there are no PWFA-like laws,

employees are less likely to ask for or receive accommodations; thus, those who have not

received accommodations prior to the PWFA should be overrepresented among those who now

have rights. The Commission based its calculations on the data that is available, and this

comment did not provide data to support this point or dispute the Commission’s calculations.

Comments and Response to Comments Regarding the Time to Read the Regulation

Several comments stated that the Commission underestimated the time to read and

understand the regulation, including stating that small businesses without a legal staff would take

a long time to read and understand the rule; that the amount of time for compliance should be

increased to account for time to read and review the regulation, obtain legal advice, develop a

compliance policy, train employees, and implement the rule, including creating systems to

collect, retain, and secure protected information; that a specific individual took 2 days to read the

regulation and several of the comments; that the cost should account for the hiring of outside

counsel; that the Commission should include the cost of processing each request for an

accommodation; and that the Commission should account for costs to train new employees and

for new businesses in future years. Most of these comments on this topic did not provide either

data or evidence to support a revision by the Commission. Those that did so provided estimates

that varied greatly, and none were grounded in research.

The Commission has slightly increased its estimate of the amount of time allotted for

compliance activities, in part to account for the fact that the final rule and Interpretive Guidance

are slightly longer, and therefore would take slightly longer to read, than the proposed rule and

Interpretive Guidance contained in the NPRM, and in part in response to comments indicating

additional time is needed for covered entities to become familiar with the rule. The Commission

estimates that compliance activities for a covered entity will take an average of 135 minutes, or

2.25 hours, in States that do not already have laws substantially similar to the PWFA and an

average of 45 minutes in States with existing laws similar to the PWFA. This estimate is

consistent with the amount of time the Commission allotted for compliance activities under other

recent regulations that it has published in connection with civil rights laws. For example, in

publishing a regulation implementing Title II of the Genetic Information Nondiscrimination Act

(GINA), the Commission estimated 3 hours for rule familiarization, which was appropriate

because GINA involved a new protection against discrimination based on genetic information.

335

Conversely, the Commission did not include a calculation of the cost for rule familiarization in

its rule amending its Age Discrimination in Employment Act (ADEA) regulations concerning

disparate-impact claims and the reasonable factors other than age defense (RFOA)

336

or its rule

implementing the ADA Amendments Act (ADAAA).

337

335

75 FR 68912, 68931 (Nov. 9, 2010).

336

77 FR 19080, 19090–94 (Mar. 30, 2012).

337

76 FR 16978, 16994–95, 16999 (Mar. 25, 2011).

Here, the Commission has calculated compliance activities under the PWFA regulation in

light of the fact that the PWFA is a new civil rights statute, but employers covered by the PWFA

already are covered by Title VII and the ADA. Presumably, these employers already have

standard procedures to inform their employees and supervisors about their rights and

responsibilities under Title VII, the ADA, and other workplace laws. Given the similarities

between the PWFA and the ADA and Title VII, employers will be able to use many of their

existing procedures and include the PWFA in their training regarding the ADA and Title VII.

338

Further, the Commission offers training and assistance specifically tailored to small

businesses.

339

The Commission does not anticipate that covered entities will need legal advice;

the PWFA and the regulation draw on well-established concepts and procedures from Title VII

and the ADA. For example, as under the ADA, an employer does not have to require supporting

documentation to provide a PWFA accommodation; if it does, the documentation under the

PWFA, like under the ADA, must be kept separate from the employee’s personnel file. Thus,

employers will be able to use a compliance mechanism they have already developed for the

ADA for the PWFA. Similarly, employers can use the same human resources staff they use to

process requests for accommodations under the ADA or Title VII for such requests under the

PWFA. Accordingly, the Commission does not anticipate that covered employers will need time

in addition to the time provided in the final rule.

Additionally, the Commission received comments that stated that the regulation would

provide appropriate guidance and would assist employers in compliance, which would reduce

employer costs.

338

H.R. Rep. No. 117-27, pt. 1, at 26–31 (discussing the similarities between the PWFA and the ADA and the

PWFA and Title VII).

339

EEOC, Small Business Resource Center, https://www.eeoc.gov/employers/small-business (last visited Mar. 25,

2024).

Summary of the Commission’s Preliminary Economic Analysis of Impacts: Nonquantifiable

Benefits

In the NPRM, the Commission identified five primary benefits of the proposed rule and

underlying statute that are difficult to quantify: (1) improvements in maternal and infant health

outcomes; (2) improvements in pregnant employees’ economic security; (3) non-discrimination

and other intrinsic benefits, such as the enhancement of human dignity; (4) clarity in

enforcement and efficiencies in litigation; and (5) benefits for covered entities.

340

Comments and Response to Comments Regarding Non-Quantifiable Benefits

A number of comments agreed with the identified benefits and provided additional

research or anecdotal evidence to support the benefits.

Regarding improvements in maternal and infant health outcomes, one comment asserted

that the rule will have positive effects on pregnant employees’ mental health, stating that even

perceived pregnancy discrimination at work has been linked to increased stress and symptoms of

postpartum depression.

341

This comment linked stress resulting from workplace discrimination

and workplace conditions to increased risk of preterm birth or low birth weight, potentially

resulting in serious health problems at birth that may cause long-term health and developmental

consequences in children.

342

Such health challenges may result in additional health care costs;

accordingly, reducing stress during pregnancy also may reduce health care costs.

343

Other

comments observed that, because research shows that certain workplace conditions, such as

340

88 FR 54751–54.

341

See Kaylee J. Hackney et al., Examining the Effects of Perceived Pregnancy Discrimination on Mother and Baby

Health, 106 J. Applied Psych. 774, 777, 781 (2021).

342

Id. at 778, 781; March of Dimes, Stress and Pregnancy, https://www.marchofdimes.org/find-

support/topics/pregnancy/stress-and-pregnancy (last visited Mar. 25, 2024); March of Dimes, Long-Term Health

Effects of Preterm Birth (Oct. 2019), https://www.marchofdimes.org/find-support/topics/birth/long-term-health-

effects-premature-birth.

343

March of Dimes, Premature Birth: The Financial Impact on Business (2013),

https://onprem.marchofdimes.org/materials/premature-birth-the-financial-impact-on-business.pdf.

lengthy periods of standing or walking, or high risk of chemical exposure or noise, can result in

complications for a pregnant employee and their baby, accommodations to alleviate those

conditions improve health outcomes for pregnant employees and their children.

344

Additionally,

one comment cited a source that drew from a study that found that, overall, employment during

pregnancy is associated with a reduction in the risk of preterm birth, which supports the need to

keep pregnant employees in the workforce.

345

Other comments provided anecdotal evidence that

employees who received accommodations under the PWFA felt secure in their employment and

thus better able to focus on their new babies’ needs.

Regarding improvements in pregnant employees’ economic security, several comments

underscored that many American workers lack a financial cushion and that the proposed rule and

underlying law will mitigate short- and long-term negative financial consequences associated

with losing a job at a critical time, given increased costs due to childbirth, child rearing, and

childcare.

346

At least one comment observed that women of color and Native women are

overrepresented in low-paid jobs with few benefits, and that providing accommodations that can

help employees stay in the workforce is critical to promoting economic security.

347

344

See generally Frincy Francis et al., Ergonomic Stressors Among Pregnant Healthcare Workers, 21 Sultan

Qaboos Univ. Med. J. 172 (2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8219330 (describing ergonomic

stressors and pregnancy outcomes); see also Louisville Dep’t of Pub. Health & Wellness, Pregnant Workers Health

Impact Assessment 17–19, 23 (2019) [hereinafter Pregnant Workers Health Impact Assessment],

https://louisvilleky.gov/center-health-equity/document/pregnant-workers-hia-final-02182019pdf (identifying

workplace conditions that may impact the health of a pregnant worker and their child and basic accommodations to

alleviate those conditions to improve health outcomes).

345

Pregnant Workers Health Impact Assessment, supra note 344, at 16–17 (citing a study finding that, overall,

employment during pregnancy is associated with a reduction in risk of preterm birth, although certain types of jobs

or environments may increase the risk of preterm birth).

346

See, e.g., Lane Gillespie, Bankrate, Bankrate’s 2023 Annual Emergency Savings Report (June 22, 2023),

https://www.bankrate.com/banking/savings/emergency-savings-report/ (finding that 48 percent of Americans have

enough emergency savings to cover 3 months of expenses); Matthew Rae et al., KFF, Health Costs Associated with

Pregnancy, Childbirth, and Postpartum Care (July 13, 2022), https://www.kff.org/health-costs/issue-brief/health-

costs-associated-with-pregnancy-childbirth-and-postpartum-care/ (noting that the average health care costs

associated with “pregnancy, childbirth, and post-partum care” total $18,865, and the average out-of-pocket cost is

$2,854).

347

See Jasmine Tucker & Julie Vogtman, Nat’l Women’s Law Ctr., Hard Work Is Not Enough: Women in Low-Paid

Jobs 15 (2023), https://nwlc.org/wp-

content/uploads/2020/04/%C6%92.NWLC_Reports_HardWorkNotEnough_LowPaid_2023.pdf.

Regarding non-discrimination and other intrinsic benefits, several comments confirmed

that non-discrimination and other intrinsic benefits result from the proposed rule and underlying

law. For example, one comment stated that the underlying law gives pregnant employees “a

strong sense of dignity and belonging in the workforce,” reduces stigma and stereotyping

regarding pregnancy, and reestablishes pregnancy as an ordinary part of employment. One

comment cited a source that stated, “The reasonable accommodation framework relieves

individual employees of the burden of proving animus: of showing that an employer’s inflexible

imposition of workplace standards reflects sex stereotyping that flows from the invidious

assumption that pregnant workers are not competent or committed workers.”

348

Several

comments provided anecdotal accounts of the sense of dignity that receiving pregnancy-related

accommodations under the PWFA has given individual employees. Another comment noted that

the proposed rule and underlying law will reduce incidents in which pregnant employees

experienced humiliation at the hands of supervisors who denied accommodations and singled out

pregnant employees for negative treatment.

Regarding clarity in enforcement and efficiencies in litigation, multiple comments

confirmed that the proposed rule would provide clarity regarding employees’ rights and

employers’ obligations under the PWFA. One comment stated that the NPRM explains the

PWFA in an understandable and accessible way. One comment from a nonprofit observed that

“dozens and dozens” of low-wage employees had informed them of the “transformative” effect

of the law in their lives; some employees reported that their employers had previously denied or

ignored their requests for accommodation but granted them after the PWFA became effective.

349

At the same time, this nonprofit noted that many employees, particularly low-wage women of

color, are still denied their rights under the PWFA, demonstrating the need for a clear and

348

Reva B. Siegel, The Pregnant Citizen, from Suffrage to the Present, 108 Georgetown L.J. 167, 220–26 (2020).

349

Comment EEOC-2023-0004-98298, A Better Balance, at 7 (Oct. 10, 2023).

comprehensive rule. Finally, as previously noted, the comment from several State Attorneys

General observed that States that had enacted laws protecting pregnant employees in the

workplace did not experience a marked increase in litigation following the law’s enactment, and

the vast majority of complaints resolve prior to administrative proceedings or litigation.

350

Regarding benefits for covered entities, some comments stated that employers benefit

from retaining pregnant employees because searching for and training new employees results in

costs and stress on an organization, which can, in turn, negatively affect customers and other

employees. Several comments highlighted that laws like the PWFA enable businesses to retain

valuable employees, improve productivity and morale, reduce workers’ compensation costs and

absenteeism, and improve company diversity, and stated that the proposed rule would have the

same effects. One comment observed that, for small businesses struggling with worker shortages

and seeking to incentivize employee retention, the proposed rule could facilitate incentivizing

worker retention.

One comment asserted that the rule would benefit employees in industries that are

traditionally male dominated, such as manufacturing and the trades, and are physically

demanding. The comment stated that providing pregnancy-related accommodations will reduce

occupational segregation by gender, which in turn may affect the pay gap. Although this

logically may be a possible benefit, the sources cited did not directly support this proposition.

The Commission thus declines to include this as a benefit of the final rule.

The Commission received a few comments asserting that certain factors offset the non-

quantifiable benefits identified by the Commission. One comment stated that in its discussion of

the benefits to civil rights, the Commission must account for the harm done to the civil rights of

religious employers that may have to provide accommodations that conflict with their religious

beliefs. The Commission does not agree with this comment; as discussed in the preamble to the

final rule, several defenses are available to religious employers.

350

See supra note 333.

The Commission also received several comments stating that the proposed rule would

create harm to women and families because of its inclusion of abortion in the definition of

“pregnancy, childbirth, or related medical conditions.” As set out in the economic analysis and

the preamble to the final rule, the rule does not require anyone to have an abortion or force

employers to pay for abortions. Further, as set out in the response to comments on the

quantitative analysis above, there is no evidence that the rule will increase the number of

abortions. The Commission does not agree that the considerations raised in these comments

should be included here.

The Commission concludes that the benefits articulated in the NPRM are attributable to

the rule and the Commission incorporates supplemental evidence of each benefit, as described

above, into the final rule.

Regulatory Flexibility Act and Executive Order 13272 (Proper Consideration of Small

Entities in Agency Rulemaking)

Summary of the Commission’s Certification That the Rule Will Not Have a Significant Economic

Impact on a Substantial Number of Small Entities

In the NPRM, the Commission certified that the rule will not have a significant economic

impact on a substantial number of small entities.

351

The Commission reasoned that, although the

rule would apply to all small entities with 15 or more employees, and therefore would affect a

“substantial” number of small entities, it would not have a “significant economic impact” on a

substantial number of small entities.

To justify its decision to certify in the final rule, the Commission again began its analysis

by assuming that the rule will impose two quantifiable costs on small entities: the annual cost of

351

88 FR 54764. The Commission’s analysis under the Regulatory Flexibility Act, summarized here, is available at

88 FR 54764–65.

providing pregnancy-related reasonable accommodations as a result of the statute and the rule,

and the one-time cost of becoming familiar with the rule.

To estimate the one-time cost of becoming familiar with the rule, based on the analysis

detailed in the Initial Regulatory Impact Analysis (IRIA), the Commission estimated that small

entities in States and localities that have laws substantially similar to the PWFA will be limited

to a one-time administrative cost of approximately $56.76, and that small entities that are not

already subject to State or local laws substantially similar to the PWFA will face a one-time

administrative cost of approximately $170.27.

To estimate the annual cost of accommodation required by the rule, consistent with the

IRIA, in the NPRM the Commission assumed that the number of individuals seeking

accommodations will be approximately equal to the number of individuals who actually become

pregnant during that year; that 33 percent of the employees within each small entity are capable

of becoming pregnant, and that, of these, 4.7 percent will actually become pregnant in a given

year; that between 23 and 71 percent of pregnant individuals within each small entity will need

an accommodation; that 49.4 percent of such accommodations will have no cost; and that the

average cost of the remaining 50.6 percent of needed accommodations will be $300 distributed

over 5 years, or $60 annually. Using these figures, it generated the following cost estimates for

small entities of various sizes:

352

Table 13 (from the NPRM): Annual Costs for Reasonable Accommodations for Small Businesses Based on

Size

Number of

Employees

33%

Women

Aged

16–50

4.7%

Pregnant in a

Given Year

Needing

Accommodations: 23%

(Lower Bound Estimate) –

71% (Upper Bound

Estimate)

50.6% Non-Zero-Cost

Accommodations:

Lower Bound Estimate

– Higher Bound

Estimate (Rounded

Up)

Total Expected Cost:

Lower Bound Estimate

– Higher Bound

Estimate

4.95

0.233

0.054 – 0.165

$60

16.5

0.7755

0.178 – 0.55

$60

100

1.551

0.357 – 1.01

$60

150

49.5

2.326

0.535 – 1.652

$60

200

3.102

0.713 – 2.202

1 – 2

$60 – $120

250

82.5

3.878

0.892 – 2.75

1 – 2

$60 – $120

352

Id. at 54764–65.

500

165

7.755

1.78 – 5.5

1 – 3

$60 – $180

750

247.5

11.633

2.676 – 8.259

2 – 5

$120 – $300

1000

330

15.51

3.567 – 11.012

2 – 6

$120 – $360

1250

412.5

19.388

4.459 – 13.765

3 – 7

$180 – $420

1500

495

23.265

5.351 – 16.518

3 – 9

$180 – $540

Because entities that are already subject to laws substantially similar to the PWFA are

already required to provide accommodations consistent with the PWFA, their total costs were

estimated to be the one-time cost of $56.75.

Total costs for entities that are not already subject to laws substantially similar to the

PWFA were estimated to be the annual cost of providing reasonable accommodations as detailed

in Table 13 in the NPRM (between $60 for businesses with 15 employees and $540 for

businesses with 1,500 employees), plus $170.27 (the cost of becoming familiar with the rule) in

the first year.

Revisions in Response to Comments That Addressed Both the IRIA and the Commission’s

Justification for Certifying Under the Regulatory Flexibility Act (RFA)

As detailed in the discussion of the Regulatory Impact Analysis (RIA) above, in response

to comments the Commission made adjustments to its estimate of the percentage of individuals

capable of becoming pregnant who actually become pregnant during a given year (revised

upward from 4.7 percent to 7.1 percent), and to its lower bound estimate of the percentage of

pregnant individuals who will need a reasonable accommodation (revised upward from 23

percent to 32 percent). The Commission also increased the amount of time it estimated

employers would need to familiarize themselves with the rule. Because the Commission’s

analysis under the Regulatory Flexibility Act (RFA) relied on these same estimates, the

Commission has made conforming changes below.

Comments and Response to Comments Pertaining Specifically to Small Entities

In addition to the comments that apply both to the RIA and the analysis under the RFA,

the Commission received some comments specifically addressing the rule’s effect on small

entities.

Many comments made general statements about the rule’s effect on small businesses,

without addressing specific aspects of the reasoning offered by the Commission in support of its

decision to certify.

Some comments stated generally that small entities will have difficulty complying with

the rule. A few of these emphasized that small entities may have especial difficulty reading and

understanding the rule or hiring personnel to cover for pregnant employees who take leave as a

reasonable accommodation. Some asserted that small entities will hire fewer women in

anticipation of added costs arising from the need to provide accommodations.

Other comments stated broadly that the rule will be beneficial to small entities. One such

comment noted that many States have laws similar to the PWFA with thresholds even lower than

15 employees; that, in those States, even smaller employers must provide reasonable

accommodations absent undue hardship; that providing for accommodations may allow

employers to keep employees and thus reduce costs for replacement and retraining; that the

PWFA will encourage pregnant employees to stay in the workforce, thereby supporting small

businesses; and that in States with PWFA-type statutes, increased costs or adverse economic

outcomes either have not been reported or have been so insignificant that they are not easily

measurable, likely because the required accommodations tend to be low-cost or no-cost.

On balance, the Commission concludes that the comments discussed above do not

provide it with sufficient reason to withdraw its earlier decision to certify that the rule will not

have a significant economic effect on a substantial number of small entities. As detailed above,

these comments were not uniformly in favor of withdrawal. Further, the comments stating

generally that small entities will have difficulty complying with the rule did not provide data in

support of those claims. The Commission also observes that these comments generally appear to

overlook the fact that, if a particular reasonable accommodation would impose undue hardship

on the employer, neither the PWFA nor the rule require the employer to provide it. To the extent

that the above comments predict that the rule will cause small employers to hire fewer women,

the Commission notes that such action is independently unlawful pursuant to Title VII’s

prohibition against refusal to hire women because they may become pregnant.

353

Some comments addressed the Commission’s reasoning more directly. One comment

stated that the Commission should retract its certification because over 10 percent of the 33

million small businesses in the United States will be required to comply with the rule. This

comment misrepresents the Commission’s reason for certifying. As explained above, in the

NPRM the Commission agreed that the rule will affect a “substantial” number of small entities

but concluded that the economic impact on such entities would, in almost all cases, fail to be

“significant.”

354

The Commission thus declines to retract its certification in response to this

comment.

One comment stated that, in estimating the cost of accommodations on small entities, the

Commission should not have relied on the average cost for such accommodations, but rather

should have focused on “budget-busting” accommodations that would be especially difficult for

small entities to handle. This comment did not cite data establishing how much an

accommodation would need to cost in order to qualify as “budget-busting” for small entities of a

given size, what sorts of pregnancy-related accommodations were likely to reach that threshold,

or how often such an accommodation is likely to be needed. Further, the comment did not

account for the fact that the PWFA does not require employers to provide reasonable

accommodations that would impose undue hardship; presumably the “budget-busting”

accommodations would be likely to meet this standard.

353

42 U.S.C. 2000e(k).

354

88 FR 54764.

One comment objected to the Commission’s method of determining whether a given

entity meets the 15-employee threshold for coverage under the PWFA. Specifically, the

comment objected to the fact that the Commission counts temporary or seasonal employees

toward this total under some circumstances. The Commission declines to change its method for

determining whether an entity has 15 employees in response to this comment. The same method

has been used consistently for decades under all of the statutes enforced by the EEOC and has

been endorsed by the Supreme Court.

355

One comment objected to the Commission’s decision to distribute the average cost of a

non-zero-cost accommodation ($300) over 5 years for purposes of the RFA analysis. The

Commission distributed the costs over 5 years under the assumption that most accommodations

with a cost will involve purchase of durable goods with a life of 5 years.

356

The Commission

made this same assumption when it estimated the costs arising from the provision of additional

reasonable accommodations as a result of the ADAAA.

357

The comment stated that small

employers generally will have no use for these durable goods after they are used by the original

requester. The comment provided no data to support this assertion. Further, the comment did not

identify a reason why the Commission’s estimate of average accommodation costs under the

PWFA should differ from its estimate of the same under the ADA. The Commission, therefore,

declines to amend its analysis in response to the comment.

Some comments objected to the Commission’s method of estimating the percentage of

employees within a given small entity who actually become pregnant in a given year. Although

the Commission’s estimate may be accurate for small entities in certain industries, these

comments argued, they may not be accurate for small entities operating in industries that employ

disproportionately high numbers of women. One comment identified “education and health;

355

See generally Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202 (1997).

356

88 FR 54759.

357

76 FR 16977, 16994 (Mar. 25, 2011).

leisure and hospitality; and retail and wholesale trade” as industries that employ

disproportionately high numbers of women. The comment offered the hypothetical situation of a

preschool with 25 employees, 20 of whom are women of reproductive age. The comment

concluded that the preschool likely will have continuous costs imposed by the proposed rule,

even though it has just 25 employees.

The Commission is unpersuaded that it should retract its certification that the rule will not

have a significant economic impact on a substantial number of small entities in response to these

comments. In the Commission’s view, they overestimate the costs that will be experienced in

industries with disproportionately high numbers of women employees. Consider the example

discussed above in which a business employs 25 employees, 20 of whom are capable of

becoming pregnant. To generate a lower bound estimate of the number of expected non-zero-cost

accommodations per year in the example, the Commission calculates as follows: 20 × 0.071 ×

0.32 × 0.506 = 0.22 individuals per year are likely to need a non-zero-cost pregnancy-related

reasonable accommodation, roughly equivalent to one individual every 5 years.

358

To generate an

upper bound estimate: 20 × 0.071 × 0.71 × 0.506 = 0.52 individuals per year are likely to need a

non-zero-cost pregnancy-related accommodation, roughly equivalent to one individual every 2

years. As discussed above, these costs are not expected to be high—the expected annual cost per

accommodation is estimated to be $60 per year. Thus, rather than imposing “continuous” high

costs, businesses like the one in the example should only expect to provide one relatively low-

cost accommodation every 2 to 5 years.

359

Additionally, even if a substantial number of small

358

The estimate was calculated by multiplying the number of individuals in the business who are capable of

becoming pregnant (20) by (a) 7.1 percent, to account for the fact that only some individuals who are capable of

becoming pregnant will actually become pregnant in a given year; (b) 32 percent, to account for the fact that only

some pregnant individuals will need accommodation; and (c) 50.6 percent, to account for the fact that only some

needed accommodations will have a cost. For a detailed discussion of these calculations, see the Costs section in the

Final Regulatory Impact Analysis below.

359

Further, the Commission has been given no reason to believe that the example offered in the comment and

discussed here is representative of any real industry. The percentage of employees capable of becoming pregnant in

the example is 20 ÷ 25 = 80 percent—roughly 2.5 times as high as the 33 percent national average. Additionally, the

business in the example had only 25 employees. The comment failed to provide any data establishing the existence

of any industry that has a “substantial” number of entities that have so few employees and that employs women at

entities in a particular industry were to face “continuous” costs as a result of the rule—as

demonstrated by the calculations above, a highly unlikely occurrence—it would not follow that

such costs would be “economically significant.”

For the reasons discussed above, the Commission has determined that the comments it

received regarding occupational segregation do not require it to retract its certification that the

rule will not have a significant economic impact on a substantial number of small entities, or to

revise its justification for certifying.

FINAL ECONOMIC ANALYSIS

Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation

and Regulatory Review), and 14094 (Modernizing Regulatory Review)

Introduction

The final rule has been drafted and reviewed in accordance with Executive Order (E.O.)

12866. The rule and the Interpretive Guidance are intended to add to the predictability and

consistency of executive enforcement of the PWFA and to provide covered entities and

employees with information regarding their rights and responsibilities. The rule is required

pursuant to 42 U.S.C. 2000gg–5. The Final Regulatory Impact Analysis estimates the cost of the

rule to be between $466.71 million and $484.71 million in the first year, and between $14.82 and

$32.82 million annually thereafter. It estimates that the benefits will be significant. While those

benefits cannot be fully quantified and monetized, the Commission concludes that, consistent

with E.O. 13563, the benefits (qualitative and quantitative) will justify the costs. The

such a disproportionately high rate. The example is of an entity in the education industry. The Small Business

Administration does not define the meaning of “small entity” for any of the education-related industries in terms of a

number of employees. See 13 CFR 121.210. It defines “small entity” in the elementary and secondary school

industry to be an entity that has $20 million or less in annual receipts, id., but the Commission was unable to

determine the percentage of elementary or secondary schools with $20 million or less in annual receipts that have 25

or fewer employees.

Commission notes that the rule and underlying statute create many important benefits that, in the

words of E.O. 13563, stem from “values that are difficult or impossible to quantify” including

“equity, human dignity, fairness and distributive impacts.” Additionally, because the rule

provides employees who are affected by pregnancy, childbirth, or related medical conditions

with reasonable accommodations that enable them to continue working, the benefits of the rule

include increased productivity. These benefits cannot be quantified at this time, however.

Summary

As detailed in the Final Regulatory Impact Analysis (FRIA) section below, the final rule

and underlying statute are expected to provide numerous unquantifiable benefits to qualified

employees and applicants with known limitations related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions, especially in States that currently do not

have laws substantially similar to the PWFA. It will also benefit covered entities, the U.S.

economy, and society as a whole. These unquantifiable benefits include improved maternal and

infant health; improved economic security for pregnant employees; increased equity, human

dignity, and fairness; improved clarity of enforcement standards and efficiencies in litigation;

and decreased costs related to employee turnover for covered entities.

The quantitative section in the FRIA below provides estimates of the two main expected

costs associated with the rule and underlying statute: (a) annual costs associated with providing

reasonable accommodations to qualified applicants and employees with known limitations

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions by

employers in States that do not currently have such a requirement, and (b) one-time

administrative costs for covered entities, which include becoming familiar with the rule, posting

new equal employment opportunity (EEO) posters,

360

and updating EEO policies and handbooks.

The Commission expresses the quantifiable impacts in 2022 dollars and uses discount rates of 3

and 7 percent pursuant to OMB Circular A-4.

The analysis concludes that approximately 49.4 percent of the reasonable

accommodations that will be required by the rule and underlying statute will have no cost to

covered entities, and that the average annual cost for the remaining 50.6 percent of such

accommodations is approximately $60 per year per accommodation. Taking into account that

many entities covered by the PWFA are already required to provide such accommodations under

State and local laws, the total impact on the U.S. economy to provide reasonable

accommodations under the rule and underlying statute is estimated to be between $14.82 million

and $32.82 million per year.

The estimated one-time costs associated with administrative tasks are quite low on a per-

establishment basis—between $57.02 and $255.40, depending on the State and on the type of

employer. Despite the low per-establishment cost, the proposed rule is a “significant regulatory

action” under section 3(f)(1) of E.O. 12866, as amended by E.O. 14094, because the number of

regulated entities—hence the number of entities expected to incur one-time administrative

costs—is extremely large (including all public and private employers with 15 or more employees

and the Federal Government). As a result, the Commission has concluded that the overall cost to

the U.S. economy will be in excess of $200 million.

361

Final Regulatory Impact Analysis (FRIA)

360

The Commission posted an updated poster on its website concurrent with the PWFA’s effective date of June 27,

2023. See EEOC, “Know Your Rights: Workplace Discrimination is Illegal” Poster, https://www.eeoc.gov/poster

(last visited Mar. 25, 2024).

361

The Congressional Budget Office (CBO) did not review the PWFA for intergovernmental or private-sector

mandates because “[s]ection 4 of the Unfunded Mandates Reform Act excludes from the application of that act any

legislative provision that would establish or enforce statutory rights prohibiting discrimination,” and CBO

“determined that the bill falls within that exclusion because it would extend protections against discrimination in the

workplace based on sex to employees requesting reasonable accommodations for pregnancy, childbirth, or related

medical conditions.” H.R. Rep. No. 117-27, pt. 1, at 41.

The Need for Regulatory Action

The PWFA and the final rule respond to the previously limited availability of

accommodations for employees affected by pregnancy, childbirth, or related medical conditions

under Federal law. Although Title VII (as amended by the Pregnancy Discrimination Act (PDA))

provided some protections for employees affected by pregnancy, childbirth or related medical

conditions, court decisions regarding the ability of employees affected by pregnancy, childbirth,

or related medical conditions to obtain workplace accommodations created “unworkable”

standards that did not adequately protect pregnant employees.

362

Similarly, prior to the PWFA,

some pregnant employees could obtain protections under the ADA, but these were limited.

363

Pregnant employees who could not obtain accommodations risked their economic security,

which had harmful effects for themselves and their families.

364

Furthermore, the loss of a job can

affect a pregnant employee’s economic security for decades, as they lose out on “retirement

contributions . . . short-term disability benefits, seniority, pensions, social security contributions,

life insurance, and more.”

365

Additionally, the lack of workplace accommodations can harm the

health of the employee and their pregnancy.

366

While numerous States have laws that provide for

accommodations for pregnant employees, the lack of a national standard prior to passage of the

PWFA meant that employees’ rights varied depending on the State in which they lived, some of

which left employees completely unprotected.

367

362

Id. at 14–16 (describing court rulings under Title VII and the Supreme Court’s decision in Young, 575 U.S. 206);

see 88 FR 54714–16.

363

H.R. Rep. No. 117-27, pt. 1, at 19–21 (describing court decisions under the ADA that failed to find coverage for

employees with pregnancy-related disabilities).

364

Id. at 22 (“When pregnant workers are not provided reasonable accommodations on the job, they are oftentimes

forced to choose between economic security and their health or the health of their babies.”); id. at 24 (noting that

“families increasingly rely on pregnant workers’ incomes.”).

365

Id. at 25.

366

Id. at 22 (“According to the American College of Obstetricians and Gynecologists (ACOG), providing reasonable

accommodations to pregnant workers is critical for the health of women and their children.”); id. (describing how a

lack of an accommodation led to a miscarriage for a worker).

367

See infra Table 1 for a calculation of the number of employees who live in States without PWFA-analogue laws.

The PWFA at 42 U.S.C. 2000gg–3(a) provides that “[n]ot later than 1 year after [the date

of enactment of the Act], the Commission shall issue regulations in an accessible format in

accordance with subchapter II of chapter 5 of title 5 [of the United States Code] to carry out this

chapter. Such regulations shall provide examples of reasonable accommodations addressing

known limitations related to pregnancy, childbirth, or related medical conditions.”

Pursuant to 42 U.S.C. 2000gg–3(a), the EEOC is issuing this rule following the

procedures codified at 5 U.S.C. 553(b).

Baseline

The PWFA is a new law that requires covered entities to provide reasonable

accommodations to the known limitations related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions of qualified employees. As set out in the NPRM,

368

the

PWFA seeks to fill gaps in the Federal and State legal landscape regarding protections for

employees affected by pregnancy, childbirth, or related medical conditions.

Employees affected by pregnancy, childbirth, or related medical conditions have certain

rights under existing civil rights laws, such as Title VII, the ADA, the Family and Medical Leave

Act of 1993, 29 U.S.C. 2601 et seq. (FMLA), the Providing Urgent Maternal Protections for

Nursing Mothers Act (PUMP Act), and various State and local laws.

369

Under Title VII, an employee affected by pregnancy, childbirth, or related medical

conditions may be able to obtain a workplace modification to allow them to continue to work.

370

368

88 FR 54714–15.

369

For a list of State laws, see infra Table 1. In addition, Federal laws regarding Federal funding such as Title IX of

the Education Amendments of 1972, 20 U.S.C. 1681 et seq., and the Workforce Innovation and Opportunity Act, 29

U.S.C. 3248(a)(2), provide protection from sex discrimination, including discrimination based on pregnancy,

childbirth, or related medical conditions.

370

As relevant here, Title VII protects employees from discrimination based on pregnancy, childbirth, or related

medical conditions “with respect to . . . compensation, terms, conditions, or privileges of employment[] because of

such individual’s . . . sex.” 42 U.S.C. 2000e–2(a)(1). Discrimination because of sex includes discrimination based on

“pregnancy, childbirth, or related medical conditions.” 42 U.S.C. 2000e(k). Title VII also provides that “women

Typically courts have only found in favor of such claims if the employee can identify another

individual similar in their ability or inability to work who received such an accommodation, or if

there is some direct evidence of disparate treatment (such as a biased comment or a policy that,

on its face, excludes pregnant employees). However, there may not always be similarly situated

employees. For this reason, some pregnant employees have not received simple, common-sense

accommodations, such as a stool for a cashier

371

or bathroom breaks for a preschool teacher.

372

And even when the pregnant employee can identify other employees who are similar in their

ability or inability to work, some courts still have not found a Title VII violation.

373

Under the ADA, certain employees affected by pregnancy, childbirth, or related medical

conditions may have the right to accommodations if they have an “actual” or “record of” ADA

disability; this standard does not include pregnancy itself but includes a pregnancy-related

disability.

374

Under the FMLA, covered employees can receive up to 12 weeks of job-protected unpaid

leave for, among other things, a serious health condition, the birth of a child, and bonding with a

newborn within 1 year of birth.

375

However, employees must work for an employer with 50 or

more employees within 75 miles of their worksite and meet certain tenure requirements in order

affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related

purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in

their ability or inability to work.” Id.

371

See, e.g., Portillo v. IL Creations Inc., No. 1:17-cv-01083, 2019 WL 1440129, at *5 (D.D.C. Mar. 31, 2019).

372

See, e.g., Wadley v. Kiddie Acad. Int’l, Inc., No. 2:17-CV-05745, 2018 WL 3035785, at *4 (E.D. Pa. June 19,

2018).

373

See, e.g., Wal-Mart Stores E., 46 F.4th at 597–99 (concluding that the employer did not engage in discrimination

when it failed to accommodate pregnant employees with light duty assignments, even though the employer provided

light duty assignments for employees who were injured on the job); but see, e.g., Legg, 820 F.3d at 69, 75–77

(vacating judgment for the employer where officers injured on the job were entitled to light duty but pregnant

employees were not).

374

42 U.S.C. 12102(2), (4); 29 CFR part 1630, appendix 1630(h); Enforcement Guidance on Pregnancy

Discrimination, supra note 31, at (II).

375

29 U.S.C. 2612(a)(1); 29 CFR 825.120.

to be entitled to FMLA leave.

376

Survey data from 2018 show that only 56 percent of employees

are eligible for FMLA leave.

377

Further, the FMLA only provides unpaid leave—it does not

require reasonable accommodations that would allow employees to stay on the job and continue

to be paid.

The PUMP Act requires employers who are covered by the Fair Labor Standards Act, 29

U.S.C. 201 et seq. (FLSA), to provide reasonable break time for an employee to express breast

milk for their nursing child each time such employee has need to express milk for 1 year after the

child’s birth. The PUMP Act also requires employers to provide a place to pump at work, other

than a bathroom, that is shielded from view and free from intrusion from coworkers and the

public.

378

As set out in Table 1, 30 States currently have laws similar to the PWFA that provide for

accommodations for pregnant employees. In most States, again as set out in Table 1, the State

laws cover the same employers that are covered by the PWFA. Employees in the remaining

States and Federal Government employees have the rights set out in the Federal laws described

above and, until the passage of the PWFA, did not have the protections of a law like the PWFA.

In addition to the protections provided by the above laws, the Federal Government

provides 12 weeks of paid parental leave to eligible Federal employees upon the birth of a new

child.

379

Nonquantifiable Benefits

376

29 U.S.C. 2611(2)(A), (B).

377

Scott Brown et al., Employee and Worksite Perspectives of the Family and Medical Leave Act: Executive

Summary for Results from the 2018 Surveys 3 (2020), https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/

WHD_FMLA2018SurveyResults_ExecutiveSummary_Aug2020.pdf.

378

U.S. Dep’t of Lab., FLSA Protections to Pump at Work, https://www.dol.gov/agencies/whd/pump-at-work (last

visited Mar. 25, 2024).

379

Federal Employee Paid Leave Act, Pub. L. 116-92, 133 Stat. 1198, 2304-09 (2019).

The final rule and the underlying statute create many important benefits that stem from

“values that are difficult or impossible to quantify,” including “equity, human dignity, [and]

fairness.”

380

These benefits are the marginal increase in those values beyond the protections

provided in the laws outlined above. The Commission has identified five primary benefits of the

rule and underlying statute. The Commission did not quantify each of the following benefits that

are expected to result from the PWFA and its implementing regulation, however, because it did

not identify sufficient data to quantify these benefits.

381

Improvements in Health for Pregnant Employees and Their Babies

Congress enacted the PWFA in large part to improve maternal and infant health

outcomes. The legislative history emphasizes that the new law was needed because “[n]o worker

should have to choose between their health, the health of their pregnancy, and the ability to earn

a living.”

382

Congress further concluded that

“providing reasonable accommodations to pregnant

workers is critical to the health of women and their children.”

383

The need to improve health

outcomes surrounding pregnancy is critical—as a recent report noted, “women in our country are

dying at a higher rate from pregnancy-related causes than in any other developed nation.”

384

Additionally, “Black women are more than three times as likely as White women to die from

pregnancy-related causes, while American Indian/Alaska Native [women] are more than twice as

380

76 FR 3821 (Jan. 21, 2011).

381

Where relevant, the Commission requested additional data in the NPRM. See 88 FR 54749.

382

H.R. Rep. No. 117-27, pt. 1, at 11.

383

Id. at 11, 22.

384

The White House, White House Blueprint for Addressing the Maternal Health Crisis 1 (2022),

https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf.

likely,”

385

and a recent study shows that negative health outcomes during pregnancy

disproportionately affect Black women compared to White women regardless of wealth.

386

Some studies have shown increased risk of miscarriage,

387

preterm birth,

388

low birth

weight, urinary tract infections, fainting, and other health problems for pregnant employees

because of workplace conditions.

389

Research also shows that certain workplace conditions, such

as lengthy periods of standing or walking, or high risk of chemical exposure or noise, can result

in complications for a pregnant employee and their baby; thus accommodations to alleviate those

conditions improve health outcomes for pregnant employees and their children.

390

385

Id. at 15.

386

Kate Kennedy-Moulton et al., Maternal and Infant Health Inequality: New Evidence from Linked Administrative

Data 5 (Nat’l Bureau of Econ. Rsch., Working Paper No. 30,693, 2022),

https://www.nber.org/system/files/working_papers/w30693/w30693.pdf (finding that maternal and infant health vary

with income, but infant and maternal health in Black families at the top of the income distribution is similar to or

worse than that of White families at the bottom of the income distribution).

387

H.R. Rep. No. 117-27, pt. 1, at 22; Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 733,

Employment Considerations During Pregnancy and the Postpartum Period e119 (2018) [hereinafter ACOG

Committee Opinion], https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-

opinion/articles/2018/04/employment-considerations-during-pregnancy-and-the-postpartum-period.pdf (discussing

studies that showed an increased risk of miscarriage or stillbirth associated with night work, working more than 40

hours a week, or extensive lifting, but noting that “[i]t is difficult to draw definitive conclusions from these

studies”).

388

H.R. Rep. No. 117-27, pt. 1, at 22; ACOG Committee Opinion, supra note 387, at e119–20 (discussing studies

that found a “slight to modest risked increase” of preterm birth with some work conditions, but also noting that it is

hard to know whether these results were due to “bias and confounding or to an actual effect”).

389

H.R. Rep. No. 117-27, pt. 1, at 22; see also Hackney et al., supra note 341, at 774, 781 (2021) (describing two

studies that demonstrated that perceived pregnancy discrimination serves as a threat to women’s resources which

leads to increased postpartum depressive symptoms for mothers, decreased birth weight and gestational age, and

increased doctors’ visits for their babies, via mothers’ stress); Renee Mehra et al., “‘Oh Gosh, Why Go?’ Cause They

Are Going to Look At Me and Not Hire”: Intersectional Experiences of Black Women Navigating Employment

During Pregnancy and Parenting, BMC Pregnancy & Childbirth 2 (2023),

https://bmcpregnancychildbirth.biomedcentral.com/articles/10.1186/s12884-022-05268-9 (describing studies that

found that policies that protect women in the workplace during pregnancy and the postpartum period are important

for maternal and infant health outcomes); H.M. Salihu et al., Pregnancy In the Workplace, 62 Occupational Med.

88, 94 (2012), https://academic.oup.com/occmed/article/62/2/88/1480061?login=false (finding that while physically

demanding jobs do not pose a substantial risk to fetal health, “[a] moderate temporary reduction in job physicality

may promote improved maternal and foetal health”); ACOG Committee Opinion, supra note 387, at e117

(discussing modifications for physical work and how they could help the health of pregnant workers).

390

See generally Francis et al., supra note 344 (describing ergonomic stressors and pregnancy outcomes); see also

Pregnant Workers Health Impact Assessment, supra note 344, at 17–19, 23 (identifying workplace conditions that

may impact the health of a pregnant worker and their child and basic accommodations to alleviate those conditions

to improve health outcomes).

Additionally, the provision of accommodations may improve pregnant employees’

mental health, as even perceived pregnancy discrimination at work has been linked to increased

stress and symptoms of postpartum depression.

391

Stress resulting from workplace discrimination

and workplace conditions can increase risk of preterm birth or low birth weight, potentially

resulting in serious health problems at birth that may cause long-term health and developmental

consequences in children.

392

Such health challenges may result in additional health care costs;

accordingly, reducing stress during pregnancy also may reduce health care costs.

393

Moreover, employees who do not receive needed accommodations, and who quit their

jobs as a result in order to maintain a healthy pregnancy, often lose employer-sponsored health

insurance in addition to losing their incomes.

394

In a letter to Congress, a group of leading health

care practitioner organizations explained that when a pregnant employee loses health insurance,

“the impact on both mother and baby may be long-lasting and severe. One of the main predictors

of a healthy pregnancy is early and consistent prenatal care. Loss of employment and health

benefits impact family resources, threatening the ability to access vital health care when a

woman needs it the most.”

395

391

Hackney et al., supra note 341, at 777, 781.

392

Id. at 778, 781; March of Dimes, Stress and Pregnancy, https://www.marchofdimes.org/find-

support/topics/pregnancy/stress-and-pregnancy (last visited Mar. 25, 2024); March of Dimes, Long-Term Health

Effects of Preterm Birth (Oct. 2019), https://www.marchofdimes.org/find-support/topics/birth/long-term-health-

effects-premature-birth.

393

March of Dimes, Premature Birth: The Financial Impact on Business (2013),

https://onprem.marchofdimes.org/materials/premature-birth-the-financial-impact-on-business.pdf.

394

Fighting for Fairness: Examining Legislation To Confront Workplace Discrimination, Joint Hearing Before the

Subcomm. on Civ. Rts. & Hum. Servs. and the Subcomm. on Workforce Prots. of the H. Comm. on Educ. & Lab.,

117th Cong. 153 (2021) [hereinafter Fighting for Fairness] (statement of Dina Bakst, Co-Founder & Co-President,

A Better Balance) (describing employees who lose their income and, as a result, lose their health insurance, forcing

them to delay or avoid critical prenatal or postnatal care).

395

Long Over Due: Exploring the Pregnant Workers Fairness Act (H.R. 2694), Hearing Before the Subcomm. on

Civ. Rts. & Hum. Servs. of the H. Comm. on Educ. & Lab., 116th Cong. 142 (2019) [hereinafter Long Over Due]

(including a letter from professional medical associations, including the American Academy of Family Physicians,

the American Academy of Pediatrics, the American Public Health Association, the American College of Nurse-

Midwives, the American College of Obstetricians and Gynecologists, the Association of Women’s Health, Obstetric

and Neonatal Nurses, the National Alliance to Advance Adolescent Health, and Physicians for Reproductive

Health); Fighting for Fairness, supra note 394, at 30–31 (statement of Dina Bakst, Co-Founder and Co-President, A

Finally, by helping pregnant employees avoid health risks to themselves and their

pregnancies, the PWFA will help contribute to improved maternal and child health and lower

health care costs nationally.

Improvements in Pregnant Employees’ Economic Security

Access to reasonable accommodations at work will help employees with limitations

related to pregnancy, childbirth, or related medical conditions to stay in the workforce, maintain

their income, and provide for themselves and their families.

396

Based on anecdotal evidence,

unavailability of accommodations often forces employees to take unpaid leave, quit their jobs, or

seek jobs that are potentially less lucrative, threatening their economic security.

397

The lack of an

accommodation may also have far-reaching economic effects. As the House Committee on

Education and Labor Report for the PWFA stated, “Pregnant workers who are pushed out of the

workplace might feel the effects for decades, losing out on everything from 401(k) or other

retirement contributions to short-term disability benefits, seniority, pensions, social security

contributions, life insurance, and more.”

398

Provision of reasonable accommodations may also

have economic benefits to society as a whole by keeping people attached to the labor force and

lowering the likelihood of some employees being compelled to seek public assistance after they

are forced to quit their jobs.

399

Better Balance) (discussing Julia Barton, a pregnant corrections officer who quit her job because she did not receive

an accommodation and therefore lost her health insurance).

396

The Commission is not able to monetize or quantify this benefit because, although anecdotal evidence establishes

that lack of accommodation has led employees to quit their jobs, there are no data on how frequently this happens.

397

Long Over Due, supra note 395, at 15 (statement of Kimberlie Michelle Durham) (describing losing her job

because she needed an accommodation and explaining that her new job did not provide overtime or benefits); id. at

150–53 (letter from the ACLU) (describing the ACLU’s legal representation of pregnant employees, many of whom

were forced to take unpaid leave or lost their jobs).

398

See H.R. Rep. No. 117-27, pt. 1, at 21–22, 25.

399

See Long Over Due, supra note 395, at 15 (statement of Kimberlie Michelle Durham) (describing when she was

forced to go on unpaid leave after she asked for an accommodation and, as a consequence, was unable to find new

employment, moved back in with family, and was unable to find a job with benefits comparable to those offered by

her EMT job, including health insurance; her child is on Medicaid); id. at 41 (statement of Dina Bakst, Co-Founder

Providing needed workplace accommodations to qualified applicants and employees with

limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions is another step toward ensuring women’s continued and increased participation in the

labor force.

400

Among other things, women’s participation in the labor force is heavily impacted

by pregnancy and the demands associated with raising young children.

401

The passage of the

PDA in 1978, which prohibits employment discrimination based on pregnancy, childbirth, or

related medical conditions and requires that women affected by pregnancy, childbirth, or related

medical conditions be treated the same as other individuals similar in their ability or inability to

work, increased the participation rate of pregnant women in the labor market.

402

As of 2021, over

66 percent of women in the United States who gave birth in the prior year were in the labor

force,

403

up from about 57 percent in 2006.

404

Moreover, an increasing number of pregnant

employees are working later into their pregnancies—over 65 percent of first-time mothers who

worked during their pregnancy worked into the last month before their child’s birth.

405

& Co-President, A Better Balance) (discussing a pregnant cashier who needed lifting restriction but was sent home

and, without income, became homeless); id. at 46 (statement of Dina Bakst) (discussing an armored truck company

employee who requested to avoid heavy lifting at the end of pregnancy but was instead sent home; as a result, she

lost health insurance and needed to rely on public benefits such as food stamps); id. at 70 (statement of Dina Bakst)

(presenting stories from State legislatures that describe savings to government assistance programs stemming from

the passage of PWFA-like laws in their States).

400

Id.; see also id. at 25 (statement of Iris Wilbur, Vice President of Government Affairs & Public Policy, Greater

Louisville, Inc., The Metro Chamber of Commerce) (“[T]he Act will help boost our country’s workforce

participation rate among women. In States like Kentucky, which ranks 44th in the nation for female labor

participation, we know one contributor to this abysmal statistic is a pregnant worker who is forced out or quits a job

due to a lack of reasonable workplace accommodations.”).

401

Catherine Doren, Is Two Too Many? Parity and Mothers’ Labor Force Exit, 81 J. Marriage & Fam. 327, 341

(2019) (stating that “transition to motherhood is the primary turning point in women’s labor force participation”).

402

Sankar Mukhopadhyay, The Effects of the 1978 Pregnancy Discrimination Act on Female Labor Supply, 53 Int’l

Econ. Rev. 1133 (2012).

403

U.S. Dep’t of Com., Census Bureau, Births in the Past Year and Labor Force Participation for Women Aged 16–

50, by Education: 2006 to 2019 (2023) [hereinafter Births in the Past Year and Labor Force Participation],

https://www.census.gov/data/tables/time-series/demo/fertility/his-cps.html (select “Historical Table 5”); see also

Steven Ruggles et al., IPUMS USA: Version 12.0 (2022), https://doi.org/10.18128/D010.V12.0.

404

Births in the Past Year and Labor Force Participation, supra note 403.

405

Lynda Laughlin, U.S. Dep’t of Com., Census Bureau, Maternity Leave and Employment Patterns of First-Time

Mothers, 1961–2008 6 (2011), https://www2.census.gov/library/publications/2011/demo/p70-128.pdf.

requiring reasonable accommodations for employees with limitations related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions, the PWFA and this rule will

further support and enhance women’s labor force participation, and, in turn, grow the U.S.

economy.

406

Non-Discrimination and Other Intrinsic Benefits

Providing accommodations to employees with limitations related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions also has important

implications for equity, human dignity, and fairness.

First, by allowing pregnant employees to care for their health and the health of their

pregnancies, the PWFA enhances human dignity. Employees will be able to prioritize their

health and the health of their future children, giving their children the best possible start in life

while also protecting their economic security. As one comment explained, the PWFA gives

pregnant employees a strong sense of dignity and belonging in the workforce, and “the

reasonable accommodation framework relieves individual employees of the burden of proving

animus: of showing that an employer’s inflexible imposition of workplace standards reflects sex

stereotyping that flows from the invidious assumption that pregnant workers are not competent

or committed workers.”

407

Second, the PWFA will diminish the incidence of sex discrimination against qualified

employees, enable them to reach their full potential, reduce exclusion, and promote self-respect.

The statute and the rule provide for reasonable accommodations to employees who would

otherwise not receive them and thus could be forced to leave their jobs or the workforce because

of their pregnancy, childbirth, or related medical conditions. Also, the statute and the rule require

406

H.R. Rep. No. 117–27, pt.1, at 24 (“Ensuring pregnant workers have reasonable accommodations helps ensure

that pregnant workers remain healthy and earn an income when they need it the most.”).

407

Siegel, supra note 348, at 220–26.

a covered entity to engage an employee in an interactive process, rather than simply assigning

the employee an accommodation, which combats stereotypes about the capabilities of employees

affected by pregnancy, childbirth, or related medical conditions. Finally, the statute and the rule

protect employees against retaliation and coercion for using the protections of the statute. These

protections against discrimination promote human dignity and equity by enabling qualified

employees to participate or continue to participate in the workforce.

408

Third, because the PWFA applies to so many covered entities, it will improve equity in

the workforce. Currently, employees affected by pregnancy, childbirth, or related medical

conditions in higher paying jobs and non-physical jobs are much more likely to be able to control

their schedules, take bathroom breaks, or eat, drink water, or telework when necessary.

409

These

employees may not have to request accommodations from their employers to meet many of their

pregnancy-related needs. Employees in low-wage jobs, however, are much less likely to be able

to organize their schedules to allow them to take breaks that may be necessary due to pregnancy,

childbirth, or related medical conditions.

410

Nearly one-third of Black and Latina workers are in

408

See Salihu et al., supra note 389, at 94 (finding that “[w]omen who perceive employers and superiors as

supportive are more likely to return to work after childbirth. This reduces the risk to employers regarding loss in

skill and training. Similarly, businesses that plan for and proactively approach pregnancy in the workplace show

lower rates of quitting and greater ease of shifting workloads in the event of a pregnancy, which increases

productivity and decreases losses”); Long Over Due, supra note 395, at 15 (testimony of Kimberlie Michelle

Durham) (“I wanted to work. I loved my job.”). See also Salihu et al., supra note 389, at 93 (describing steps

pregnant women take to combat the perception that they are a liability in the workforce and reinforce their role as

“professionals”); Long Over Due, supra note 395, at 41 (statement of Dina Bakst, Co-Founder & Co-President, A

Better Balance) (describing an employee who was denied an accommodation but who “desperately wanted to

continue working”); Hackney et al., supra note 341, at 780 (explaining that managers may make incorrect

assumptions about what pregnant employees want, such as assuming a reduced workload is beneficial, whereas

pregnant employees might find this accommodation demeaning or discriminatory, and noting the importance of

managers “hav[ing] an open dialogue with their employees about what types of support [are] needed and desired”).

409

Long Over Due, supra note 395, at 83 (statement of Rep. Barbara Lee) (describing her own pregnancy, which

required bedrest, and contrasting her experience with the experience of employees in less flexible jobs).

410

Fighting for Fairness, supra note 394, at 108 (statement of Fatima Goss Graves, President & CEO of the

National Women’s Law Center) (“[O]ver 40% of full-time workers in low-paid jobs report that their employers do

not permit them to decide when to take breaks, and roughly half report having very little or no control over the

scheduling of hours.”). NWLC defines low-wage occupations as jobs that pay $11.50 per hour or less (the annual

equivalent of about $23,920 per year ($11.50 x 2080 hours), which assumes a 40-hour workweek for 52 weeks).

Morgan Harwood & Sarah David Heydemann, By the Numbers: Where Do Pregnant Women Work?, Nat’l

Women’s Law Ctr. 4 n.11 (Aug. 2019), https://nwlc.org/wp-content/uploads/2019/08/Pregnant-Workers-by-the-

Numbers-v3-1.pdf.

low-wage jobs,

411

the types of jobs that are less likely to currently provide accommodations.

412

Therefore, the PWFA and this rule will improve equity in the workforce by ensuring that low-

paid employees, including Black and Latina employees who may have a more difficult time

securing voluntary accommodations, will have a right to them.

Fourth, providing reasonable accommodations to employees who would otherwise have

been denied them yields third-party benefits that include diminishing stereotypes regarding

employees who are experiencing pregnancy, childbirth, or related medical conditions;

413

promoting design, availability, and awareness of accommodations that can have benefits for the

general public, including non-pregnant employees, and attitudinal benefits;

414

increasing

understanding and fairness in the workplace;

415

and creating less discriminatory work

environments that benefit employees, employers, and society.

416

Clarity in Enforcement and Efficiencies in Litigation

411

Fighting for Fairness, supra note 394, at 108.

412

Id. at 204 (Letter from the National Partnership for Women & Families) (stating that women of color and

immigrants are “disproportionately likely to work in jobs and industries where accommodations during pregnancy

are not often provided (such as home health aides, food service workers, package handlers and cleaners)”); id. at

207–08 (Letter from Physicians for Reproductive Choice) (“The absence of legislation like the Pregnant Workers

Fairness Act disproportionately impacts pregnant people with low-incomes and migrant workers who are more

likely to work in arduous settings. These are the same communities that are also most at risk of experiencing

increased maternal mortality.”).

413

See Salihu et al., supra note 389, at 93 (describing studies that have “substantiated the pervasiveness of negative

perceptions of pregnant women” and the common belief that they serve as a liability in the workplace); id. at 94–95

(concluding that the issue of pregnancy in the workplace needs to be addressed proactively with an emphasis on

combating stereotypes of pregnant women as incompetent or uncommitted).

414

See Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 850–59 (2008) (describing a wide

range of potential third-party benefits that may arise from workplace accommodations for individuals with

disabilities, many of which are also relevant to accommodations for individuals protected by the PWFA).

415

See id. at 883–96 (describing attitudinal third-party benefits that arise when co-workers work with individuals

receiving accommodations in the workplace under the ADA, many of which are relevant to accommodations for

individuals protected by the PWFA).

416

See Long Over Due, supra note 395, at 3 (statement of Rep. Suzanne Bonamici) (describing the PWFA as “an

opportunity for Congress to finally fulfill the promise of the Pregnancy Discrimination Act and take an important

step towards workplace gender equity,” among other benefits).

Congress, in describing the goals of the PWFA, also focused on the clarity that the

PWFA would bring to the question of when employers must provide accommodations for

limitations related to pregnancy, childbirth, or related medical conditions: “The PWFA

eliminates a lack of clarity in the current legal framework that has frustrated pregnant workers’

legal rights to reasonable accommodations while providing clear guidance to both workers and

employers.”

417

By creating a national standard, the PWFA also may increase compliance with

State laws requiring accommodations for pregnant employees,

418

as coming into compliance with

the PWFA may increase employers’ knowledge about these laws in general. In the short time

that the PWFA has been in effect, one comment noted that dozens of employees had informed

them of the “transformative effect” of the law, with employees who had previously been denied

reasonable accommodations having them provided.

419

For example, an electrician’s assistant

reported that, following her request for a pregnancy-related accommodation, her employer

attempted to place her on leave; but after advocating for herself under the PWFA, her employer

exhibited increased flexibility and willingness to accommodate her.

420

An employee in

telecommunications stated that, after her employer took months to respond to her request for a

postpartum accommodation, she informed her employer of her rights under the PWFA, and her

employer granted the accommodation request.

421

A tax specialist reported that she requested a

pregnancy-related accommodation that her employer denied without explanation; after she

417

H.R. Rep. No. 117-27, pt. 1, at 11, 31 (“By guaranteeing pregnant workers the right to reasonable

accommodations in the workplace, the PWFA could also decrease employers’ legal uncertainty.”); see also Long

Over Due, supra note 395, at 24 (statement of Iris Wilbur, Vice President of Government Affairs & Public Policy,

Greater Louisville, Inc., The Metro Chamber of Commerce) (“For our members, uncertainty means dollars. A

consistent and predictable legal landscape means a business-friendly environment. Before Kentucky’s law was

enacted this summer, our employers were forced to navigate a complex web of Federal laws and court decisions to

figure out their obligations. And now this guidance is especially beneficial for the smaller companies we represent

who cannot afford expensive legal advisors.”).

418

For a list of these laws, see infra Table 1.

419

Comment EEOC-2023-0004-98298, A Better Balance, at 7 (Oct. 10, 2023).

420

Id. at 88.

421

Id. at 88–89.

educated her employer about the PWFA, her employer granted her request for an

accommodation.

422

By clarifying the rules regarding accommodations for pregnant employees, the PWFA

and the rule will decrease the need for litigation regarding accommodations under the PWFA. To

the extent that litigation remains unavoidable in certain circumstances, the PWFA and the rule

are expected to eliminate the need to litigate whether the condition in question is a “disability”

under the ADA, and to limit discovery and litigation costs that arise under Title VII regarding

determining if there are valid comparators, thus streamlining the issues requiring judicial

attention.

423

Benefits for Covered Entities

Providing accommodations needed due to pregnancy, childbirth, or related medical

conditions is also likely to provide benefits to covered entities. By providing accommodations to

employees affected by pregnancy, childbirth, or related medical conditions and retaining them as

employees, employers will save money by not having to obtain and train new employees. The

Commission is not aware of any data regarding the need to obtain and train employees arising

specifically from provision of reasonable accommodations for pregnancy, childbirth, or related

medical conditions. Studies examining the relationship between employee retention and

provision of reasonable accommodations for disabilities generally suggest that the benefits to

covered entities may be significant. According to one study, 85 percent of employers that

provided accommodations to individuals with disabilities reported that doing so enabled them to

retain a valued employee; 53 percent reported an increase in that employee’s productivity; 46

422

Id. at 89.

423

See H.R. Report No. 117-27, pt. 1, at 14–17 (describing the need to find comparators under Title VII and the

difficulties it has caused pregnant employees seeking accommodations); id. at 17–21 (describing the protections

available for pregnant employees under the ADA and the fact that frequently even pregnancies with severe

complications are found by courts not to be “disabilities”).

percent reported elimination of costs associated with training a new employee; 48 percent

reported an increase in that employee’s attendance; 33 percent noted that providing the

accommodation increased diversity in the company; and 23 percent reported a decrease in

workers’ compensation or other costs. Employers also noted several indirect benefits: 30 percent

noted an increase in company morale, and 21 percent noted an increase in overall company

productivity.

424

Costs

Covered Entities and the Existing Legal Landscape

Entities covered by the PWFA and the regulation include all employers covered by Title

VII and the Government Employee Rights Act of 1991, 42 U.S.C. 2000e–16a–16c (GERA),

including private and public sector employers with 15 or more employees, Federal agencies,

employment agencies, and labor organizations.

425

In addition to the legal protections described earlier in the preamble pertaining to Title

VII, the ADA, and the FMLA, there are three other important legal considerations that impact

the costs of accommodations under the PWFA and this regulation.

First, 30 States and 5 localities have laws substantially similar to the PWFA, requiring

covered employers to provide reasonable accommodations to pregnant employees.

426

As a result,

this rule will impose minimal, if any, additional costs on the covered entities in these States and

localities.

427

424

See Costs and Benefits of Accommodation, supra note 209.

425

See 42 U.S.C. 2000gg(2)(A). The PWFA also applies to employers covered by the Congressional Accountability

Act of 1995 (42 U.S.C. 2000gg(2)(B)(ii)). The proposed regulation does not apply to employers covered under the

Congressional Accountability Act, as the Commission does not have the authority to enforce the PWFA with respect

to employees covered by the Act.

426

See infra Table 1; see also U.S. Dep’t of Lab., Employment Protections for Workers Who Are Pregnant or

Nursing, https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections (last visited Mar. 25, 2024).

427

The PWFA analogues in Alaska, North Carolina, and Texas only cover certain public employers. The laws in

Louisiana and Minnesota apply to employers larger than the PWFA threshold of 15 or more employees (25 or more

Second, when it enacted the PWFA, Congress also enacted the PUMP Act, which

requires employers who are covered by the FLSA to provide reasonable break time for an

employee to pump breast milk each time such employee has the need to express milk for up to 1

year after the child’s birth. The PUMP Act also requires employers to provide a place to pump at

work, other than a bathroom, that is shielded from view and free from intrusion from coworkers

and the public.

428

As a result, the Commission anticipates that most employees will not need to

seek reasonable accommodations regarding a time and place to pump at work under the PWFA

because they will already be entitled to these under the PUMP Act.

Third, the Federal Government provides 12 weeks of paid parental leave to eligible

Federal employees upon the birth of a new child.

429

As a result, these Federal employees may

make fewer requests for leave as a reasonable accommodation under the PWFA as they are

already guaranteed a certain amount of paid leave.

Estimate of the Number of Reasonable Accommodations That Will Be Provided as a Result of the

Rule and Underlying Statute

As set out in Tables 1 and 2 and explained in detail below, the rule and underlying statute

cover approximately 116.7 million employees of private establishments with 15 or more

employees, 18.8 million State and local government employees, and 2.3 million Federal

employees. Only a small percentage of these employees are expected to seek and be entitled to

accommodations as a result of the rule and underlying statute.

Approximately 52 percent of private sector enterprises with 15 or more employees in the

United States (1.4 million establishments), employing about 61.2 million employees (accounting

employees in Louisiana; 21 or more employees in Minnesota). As explained below, the analysis takes these

differences into account.

428

U.S. Dep’t of Lab., FLSA Protections to Pump at Work, https://www.dol.gov/agencies/whd/pump-at-work (last

visited Mar. 25, 2024).

429

Federal Employee Paid Leave Act, 133 Stat. at 2304-05.

for 52 percent of employment in those States), are currently subject to State or local laws that are

substantially similar to the PWFA. The enactment of the PWFA and promulgation of the rule,

therefore, should not result in additional accommodation-related costs for these employers.

Subtracting 61.2 million employees from the total number of covered employees employed by

private sector enterprises (116.7 million) yields a total of approximately 55.5 million employees

of private sector establishments who will be covered by the rule and underlying statute, and who

are not also covered by State or local laws that are substantially similar to the PWFA. Tables 1

and 2 display each State’s share of the total national number of private sector establishments that

have 15 or more employees and thus will be subject to the PWFA, and the percentage of

employees in the State employed by such establishments. States with laws substantially similar

to the PWFA are in Table 1; States without such a law are in Table 2.

Table 1: Share of Employers with 15 or More Employees in States Already Subject to Local Pregnancy

Accommodation Laws Similar to the PWFA

430

Share in U.S. Total

431

State

Statute

Threshold

432

Establishments

Employment

California

Cal. Gov’t Code sec.

12945(a)(3)

10.6%

11.6%

Colorado

Colo. Rev. Stat. sec. 24-

34-402.3

1.9%

1.8%

Connecticut

Conn. Gen. Stat. sec. 46a-

60(b)(7)(A)–(K)

1.2%

Delaware

Del. Code Ann. Tit. 19,

sec. 711(a)(3)(b)–(f)

0.4%

0.3%

District of Columbia

D.C. Code sec. 32-1231.02

0.4%

Hawaii

Haw. Code R. sec. 12-46-

107

0.4%

Illinois

775 Ill. Comp. Stat. sec.

5/2-102(I)–(J)

3.9%

4.2%

Kentucky

Ky. Rev. Stat. sec.

344.040

1.4%

1.3%

Louisiana

433

La. Rev. Stat. sec.

23:341ff–342

1.3%

1.2%

430

U.S. Dep’t of Com., Census Bureau, The Number of Firms and Establishments, Employment, and Annual Payroll

by State, Industry, and Enterprise Employment Size: 2020 (2020) [hereinafter Firms and Establishments Data by

State], https://www.census.gov/data/tables/2020/econ/susb/2020-susb-annual.html (select “U.S. & States, NAICS,

Detailed Employment Sizes”). Percentages in the Table reflect filtering by size and summing by State.

431

This number is limited to enterprises with 15 or more employees.

432

This denotes the minimum number of employees that an employer must have to be covered by the State law.

433

These numbers only account for enterprises with at least 25 employees because Louisiana’s pregnancy

accommodation law applies to employers with 25 or more employees. See La. Rev. Stat. Ann. sec. 23:341 (2021).

Maine

Me. Stat. tit. 5, sec. 4572-

0.5%

0.4%

Maryland

Md. Code, State Gov’t sec.

20- 609

1.9%

1.8%

Massachusetts

Mass. Gen. Laws ch.

151B, sec. 4(1E)(a)

2.3%

2.6%

Minnesota

434

Minn. Stat. sec. 181.939

1.7%

2.0%

Nebraska

Neb. Rev. Stat. sec. 48-

1102(11), 1102(18)

0.7%

0.6%

Nevada

Nev. Rev. Stat. sec.

613.438

0.9%

1.0%

New Jersey

N.J. Stat. Ann. Sec. 10:5-

3.1

2.6%

2.8%

New Mexico

N.M. Code R. sec.

9.1.1.7(HH)(2)

0.6%

0.5%

New York

N.Y. Exec. Law sec.

292(21-e), (21-f); sec.

296(3)

5.2%

6.3%

North Dakota

N.D. Cent. Code Ann. Sec.

14-02.4-03

0.3%

Oregon

Or. Rev. Stat. sec.

659A.029

1.4%

1.2%

Pennsylvania

435

Phila. Code sec. 9-1128

(Philadelphia)

0.4%

0.5%

Rhode Island

R.I. Gen. Laws sec. 28-5-

7.4(a)(1)–(3)

0.3%

South Carolina

S.C. Code Ann. Sec. 1-13-

80(A)(4)

1.6%

1.5%

Tennessee

Tenn. Code. Ann. Sec. 50-

10-103

2.2%

2.1%

Utah

Utah Code sec. 34A-5-

106(1)(g)

0.9%

1.1%

Vermont

Vt. Stat. Ann. Tit. 21, sec.

495k(a)(1)

0.2%

Virginia

Va. Code sec. 2.2-3909

2.8%

2.6%

Washington

Wash. Rev. Code sec.

43.10.005(2)

2.3%

2.2%

West Virginia

W. Va. Code sec. 5-11B-2

0.6%

0.4%

Total

436

51%

52%

Total (in millions)

1.4

61.2

434

These numbers only account for enterprises with at least 25 employees because Minnesota’s pregnancy

accommodation law applies to employers with 21 or more employees. Minn. Stat. sec. 181.940, 181.9414, 181.9436

(2014). Data on enterprises with 21 to 24 employees are not available.

435

Pennsylvania does not have a State-wide pregnancy accommodation law, but Philadelphia does. See Phila. Code

sec. 9-1128 (2014). Philadelphia accounts for approximately 9 percent of Pennsylvania establishments and

approximately 12 percent of individuals employed in Pennsylvania. See U.S. Dep’t of Comm., Census Bureau, The

Number of Firms and Establishments, Employment, and Annual Payroll by Congressional District, Industry, and

Enterprise Employment Size: 2019 (2019), https://www.census.gov/data/tables/2019/econ/susb/2019-susb-

annual.html (select “State by Congressional District, NAICS Sectors”). The calculation is based on the total number

of establishments and total employment in Pennsylvania and in Philadelphia County and the shares of employment

in each.

436

This total does not include Alaska, North Carolina, and Texas, where the pregnancy accommodation laws only

apply to certain public employees.

Table 2: Share of Total U.S. Employer Establishments with 15 or More Employees in States That Will Be

Impacted by PWFA

437

Share in U.S. Total

438

State

Establishments

Employment

Alabama

1.5%

1.3%

Alaska

439

0.2%

Arizona

2.0%

Arkansas

0.9%

0.8%

Florida

6.0%

6.8%

Georgia

3.1%

Idaho

0.6%

0.4%

Indiana

2.2%

2.1%

Iowa

1.1%

1.0%

Kansas

1.0%

0.9%

Louisiana

440

0.2%

0.1%

Michigan

2.9%

3.0%

Minnesota

441

0.3%

0.1%

Mississippi

0.9%

0.7%

Missouri

2.1%

1.9%

Montana

0.4%

0.2%

New Hampshire

0.5%

North Carolina

442

3.2%

3.0%

Ohio

3.8%

Oklahoma

1.2%

1.0%

Pennsylvania

443

3.8%

3.7%

South Dakota

0.3%

Texas

444

8.5%

Wisconsin

2.0%

437

Firms and Establishments Data by State, supra note 430. Percentages in the table reflect filtering by size and

summing by State.

438

This number is limited to enterprises with 15 or more employees.

439

Alaska’s statute, codified at Alaska Stat. sec. 39.20.520 (1992), covers public employers only.

440

These numbers only include enterprises with 15–24 employees because Louisiana’s pregnancy accommodation

law applies to employers with 25 or more employees. La. Rev. Stat. Ann. sec. 23:341 (2021).

441

These numbers only include enterprises with 15–24 employees because Minnesota’s pregnancy accommodation

law applies to employers with 21 or more employees. Minn. Stat. sec. 181.940, 181.9414, 181.9436 (2014). Data on

enterprises with 15–20 employees are not available.

442

North Carolina Executive Order No. 82 (2018) covers public employers only.

443

See supra note 435.

444

The Texas statute, codified at Tex. Loc. Gov’t Code sec. 180.004 (2001), covers local public employers only.

Wyoming

0.2%

0.1%

Total

49%

48%

Total (in millions)

1.3

55.5

Similarly, approximately 11.5 million State and local government employees are covered

by laws that are substantially similar to the PWFA.

445

Subtracting this number from the total

number of covered State and local government employees (18.8 million) yields a total of 7.3

million State and local government employees who will be covered by the rule and underlying

statute and who are not already covered by State or local laws substantially similar to the PWFA.

Finally, there are 2.3 million Federal employees. The Federal Government does not

currently require accommodations for pregnant employees; thus, the PWFA provides a new right

for these employees.

446

Again, however, not all employees who are now covered by the PWFA will seek and be

entitled to accommodations as a result of the rule and underlying statute; only a small percentage

will become pregnant and need accommodations in a given year.

To estimate the number of individuals who will be entitled to a pregnancy-related

accommodation, and who will receive one as a result of the PWFA and its implementing

regulations, the Commission first estimates the proportion of newly covered employees who are

capable of becoming pregnant. In 2021, women of reproductive age (aged 16–50 years)

comprised approximately 33 percent of U.S. employees.

447

On the basis of this finding, the

445

U.S. Dep’t of Com., Census Bureau, 2021 ASPEP Datasets & Tables (2021) [hereinafter ASPEP Datasets],

https://www.census.gov/data/datasets/2021/econ/apes/annual-apes.html. The calculation is based on data from the

“State Government Employment & Payroll Data” and the “Local Government Employment & Payroll” files, in the

“Government Function” column.

446

As noted above, however, most Federal employees are entitled to 12 weeks of paid parental leave during the 12-

month period following birth of a child (or other qualifying event) under the FEPLA. See Federal Employee Paid

Leave Act, 133 Stat. at 2304-05. Individuals eligible for such leave may be less likely to need leave as a reasonable

accommodation under the PWFA.

447

See Ruggles et al., supra note 403.

Commission adopts 33 percent as its estimate of the percentage of employees who are capable of

becoming pregnant.

The Commission next estimates the proportion of individuals capable of becoming

pregnant who will actually become pregnant in a given year. Research shows that approximately

4.7 percent of individuals who are capable of becoming pregnant gave birth to at least one child

during the previous year.

448

This figure must be adjusted upward to account for the fact that not

all individuals who become pregnant give birth—some pregnant individuals have miscarriages,

stillbirths, or abortions. Research shows that, between 2015 and 2019, live births in the United

States accounted for 67 percent of all pregnancies among women aged 15–44 years on

average.

449

Assuming that the ratio of live births to total pregnancies among women of

reproductive age in the labor force is the same as among all 15–44 years old women, the

Commission estimates that the percentage of individuals capable of becoming pregnant who will

actually become pregnant in given year is 0.047 ÷ 0.67 = 0.071 (rounded up), or 7.1 percent. The

Commission thus adopts 7.1 percent as its estimate of the percentage of individuals capable of

becoming pregnant within a population who will actually become pregnant in a given year.

Applying these percentages to the numbers above yields totals (rounded to the nearest

1,000) of, in a given year, 1.3 million private sector employees (55,500,000 × 0.33 × 0.071),

171,000 State and local government employees (7,300,000 × 0.33 × 0.071), and 54,000 Federal

employees (2,300,000 × 0.33 × 0.071) who are both newly eligible for reasonable

accommodations under the rule and underlying statute, and who may be expected to become

pregnant in a given year. Tables 3, 4, and 5 display these calculations.

Table 3: Computation of Expected Number of Pregnant Women Eligible for PWFA Accommodations at

Private Employers

Total employment in establishments covered under PWFA (i.e., those with 15 or more

employees)

116.7 million

Total employment in establishments covered under PWFA, with existing PWFA-type

accommodations under State/local laws (from Table 1)

61.2 million

448

Id.

449

Rossen et al., supra note 317, at 9 tbl. A.

Total employment in establishments covered under PWFA, without existing PWFA-type

accommodations under State/local laws (from Table 2)

55.5 million

Share of 16-50 years old women

33%

Total number of women employees newly eligible for accommodations under PWFA (33%

of 55.5 million)

18.3 million

Expected share of women employees to be pregnant in a year

7.1%

Expected number of pregnant employees newly eligible for accommodations under PWFA

(7.1% of 18.3 million)

1.3 million

Table 4 Computation of Expected Number of Pregnant Women Eligible for PWFA Accommodations in State

and Local Government Employment

450

Total State and local government employment

18.8 million

Total State and local government employment in States with existing PWFA-type

accommodations under State/local laws

451

11.5 million

Total State and local government employment in States without existing PWFA-type

accommodations under State/local laws

452

7.3 million

Share of 16-50 years old women

33%

Total number of State and local government women employees newly eligible for

accommodations under PWFA (33% of 7.3 million)

2.41 million

Expected share of women employees to be pregnant in a year

7.1%

Expected number of pregnant State and local government employees newly eligible for

accommodations under PWFA (7.1% of 2.41 million)

171,000

Table 5: Computation of Expected Number of Pregnant Women Eligible for PWFA Accommodations in

Federal Government Employment

Total Federal Government civilian employment

453

2.3 million

Share of 16-50 years old women

33%

Total number of women Federal Government employees newly eligible for

accommodations under PWFA

0.76 million

Expected share of women employees to be pregnant in a year

7.1%

Expected number of pregnant Federal Government employees newly eligible for

accommodations under PWFA (7.1% of 0.76 million)

54,000

450

The calculation is based on data as described in ASPEP Datasets, supra note 445.

451

This number includes 12 percent of State and local government employment in Pennsylvania to account for

Philadelphia’s PWFA-type law, excludes local government employment in North Carolina because the existing law

only applies to State employees, and excludes State government employment in Texas because the existing law only

applies to local governments.

452

This number includes State and local government employment in Pennsylvania not accounted for by

Philadelphia, includes local government employment in North Carolina because the existing law only applies to

State employees, and includes State government employment in Texas because the existing law only applies to local

governments.

453

U.S. Dep’t of Com., Bureau of Econ. Analysis, Full-Time and Part-Time Employees by Industry,

https://apps.bea.gov/iTable/?reqid=19&step=2&isuri=1&1921=survey#eyJhcHBpZCI6MTksInN0ZXBzIjpbMSwyL

DNdLCJkYXRhIjpbWyJDYXRlZ29yaWVzIiwiU3VydmV5Il0sWyJOSVBBX1RhYmxlX0xpc3QiLCIxOTMiXV19 (last

updated Sept. 29, 2023).

The sum of the expected number of pregnant women eligible for PWFA accommodations

in the private sector (1.3 million), State and local government (171,000), and Federal

Government (54,000) is 1.525 million.

The Commission next estimates the proportion of pregnant individuals in the workplace

who may need a pregnancy-related reasonable accommodation and who will receive such

accommodation as a result of the rule and the underlying statute. Data regarding the number of

pregnant employees needing some type of accommodation are limited. One survey indicated that

71 percent of pregnant employees experience a pregnancy-related limitation that requires extra

breaks, such as bathroom breaks; 61 percent experience a limitation that requires a change in

schedule or more time off, for example, to see prenatal care providers; 53 percent experience a

limitation that requires a change in duties, such as less lifting or more sitting; and 40 percent

experience a limitation that requires some other type of workplace adjustment.

454

The research establishes that 71 percent of pregnant individuals surveyed needed the

most common type of pregnancy-related reasonable accommodation: additional breaks. The

Commission assumes for purposes of the final economic impact analysis that the pregnant

individuals in the study who needed one of the more unusual accommodations are a subset of the

71 percent who need additional breaks. The Commission thus adopts 71 percent as its upper

bound estimate of the percentage of pregnant employees who will need a pregnancy-related

accommodation under the rule.

455

Applying the 71 percent estimate yields upper bound estimates

(rounded to the nearest 1,000) of 923,000 private sector employees (71 percent of 1,300,000),

121,000 State and local government employees (71 percent of 171,000), and 38,000 Federal

454

Declercq et al., supra note 319, at 36. As explained in the preamble, the Commission is maintaining this as the

high bound of employees who may need an accommodation because this is the percentage of employees who needed

the simplest accommodation (e.g., breaks to use the bathroom).

455

The Commission asserts that this estimate is almost certainly too high because, although 71 percent of the

pregnant individuals participating in the research needed a reasonable accommodation, not all such individuals

needed the PWFA to obtain such accommodation. As explained above, many individuals who need pregnancy-

related accommodations may already be entitled to them under the ADA, Title VII, or formal or informal employer

policies.

sector employees (71 percent of 54,000), for a total 1,082,000 employees, who will need a

reasonable accommodation and who will receive one as a result of the PWFA and the rule in a

given year.

In setting its lower bound estimate, the Commission observes that not every individual

who is newly entitled to a pregnancy-related accommodation under the PWFA and the rule, and

who receives such an accommodation, will receive it as a result of the rule. Some of these

individuals will already be entitled to receive pregnancy-related accommodations under other

authorities, independently of the PWFA and its implementing regulations—some will already be

entitled to them under the ADA, others will be entitled to them under Title VII, and yet others

will be entitled to them under formal or informal employer policies.

456

Therefore, costs arising

from pregnancy-related accommodations cannot always be attributed to the rule and the

underlying statute, even where the employee in question was not previously covered under a

State law analogous to the PWFA.

To generate its lower bound estimate, the Commission reduces its upper bound estimate

of 71 percent to reflect the fact that some of those individuals would receive their requested

accommodation independently of the rule. According to the study cited above,

457

42 percent of

the individuals who needed additional breaks due to a pregnancy-related limitation did not

receive them because they were never requested, and 3 percent did not receive them because the

employer denied their request. Thus, 0.71 × 0.45 = 0.32, or 32 percent, of pregnant individuals

surveyed needed, but did not receive the requested accommodation. On the basis of this research,

the Commission adopts 32 percent as its lower bound estimate of the percentage of pregnant

employees who will need a reasonable accommodation under the PWFA and its implementing

456

Additionally, some workplace modifications, such as providing personal protective equipment, and protecting

employees from exposures to hazardous chemicals, may already be required by Federal or State workplace health

and safety laws, regardless of whether the employee is pregnant.

457

See Declercq et al., supra note 319, at 36. We note that this study was conducted prior to many PWFA-type laws

being enacted. Because the data are being used to estimate the number of requests that will occur in States and

localities that do not already have PWFA-type laws, EEOC believes it is appropriate to rely on this survey.

regulations. Applying this percentage yields lower bound estimates (rounded to the nearest

1,000) of approximately 416,000 private sector employees (32 percent of 1,300,000); 55,000

State and local government employees (32 percent of 171,000); and 17,000 Federal sector

employees (32 percent of 54,000), for a total of 488,000 employees who will need, and be newly

entitled to, reasonable accommodations under the rule and underlying statute in a given year.

Cost of Accommodation

Accommodations that allow pregnant employees to continue to perform their job duties,

thereby allowing them to receive continued pay and benefits, include additional rest or bathroom

breaks, use of a stool or chair, a change in duties to avoid strenuous physical activities, and

schedule changes to attend prenatal appointments.

458

Some of these accommodations, especially

additional rest or bathroom breaks and provision of a stool or chair, are expected to impose

minimal or no additional costs on the employer. Certain other types of accommodations, such as

allowing the employee to avoid heavy lifting or exposure to certain types of chemicals, may be

easy to provide in some jobs but more difficult to provide in others, necessitating temporary

restructuring of responsibilities or transferring to a different position.

The Commission was unable to find any data on the average cost of reasonable

accommodations related specifically to pregnancy, childbirth, or related medical conditions. The

Commission has therefore relied on the available data on the cost of accommodations for

individuals with disabilities for purposes of this analysis.

A survey conducted by the Job Accommodation Network (JAN) indicates that most

workplace accommodations for individuals with disabilities are low-cost.

459

Of the employers

participating in this survey between 2019 and 2022, 49.4 percent reported that they provided an

458

Id.; see also Long Over Due, supra note 395, at 79 (statement of Dina Bakst, Co-Founder & Co-President, A

Better Balance) (describing potential accommodations).

459

Costs and Benefits of Accommodation, supra note 209.

accommodation needed because of a disability that did not cost anything to implement. The

Commission believes that the percentage of no-cost accommodations is likely to be higher for

accommodations related specifically to pregnancy, childbirth, or related medical conditions,

because many will be simple and no-cost like access to water, stools, or more frequent bathroom

breaks, and because the vast majority will be temporary. Nevertheless, because the Commission

is unable to locate any data on the percentage of accommodations needed because of pregnancy-

related conditions that have no cost, the Commission conservatively assumes for purposes of this

analysis that the percentages are the same.

The same research showed that the median one-time cost of providing a non-zero-cost

accommodation was $300. Only 7.2 percent of employers reported that they provided an

accommodation that resulted in ongoing annual costs. Because pregnancy is a temporary

condition, the ongoing costs incurred by 7.2 percent of employers are unlikely to be applicable to

pregnancy-related accommodations, and the Commission adopts $300 as the median one-time

cost for employers that incurred a cost (50.6 percent of employers). Again, although the

Commission believes that the average cost is likely lower for accommodations needed

specifically for pregnancy, childbirth, or related medical conditions, it will use the data for the

purposes of this analysis.

Because non-zero-cost accommodations generally involve durable goods such as

additional stools, infrastructure for telework, and machines to help with lifting, and because these

goods generally have a useful life of 5 years, the Commission will assume that the annual cost of

providing these accommodations is approximately $60 per year per accommodation.

460

Using these cost estimates, and applying them to the upper and lower bound estimates for

the number of additional accommodations that will likely be required by the rule and underlying

statute, the estimated annual costs (rounded to the nearest 1,000) for private employers is

460

The Commission made a similar assumption of a 5-year life for accommodations in its cost analysis of the

amendments to the ADA. 76 FR 16977, 16994 (Mar. 25, 2011).

between $12.60 million and $28.02 million; the estimated annual costs for State and local

governments is between $1.68 million and $3.66 million, and the estimated annual costs for the

Federal Government is between $540,000 and $1.14 million. See Tables 6, 7, and 8.

Table 6: Estimated Reasonable Accommodation Costs to Private Employers with 15 or More Employees

Cost of accommodation

Lower Bound

(32%)

Upper Bound

(71%)

Number of women needing accommodation

416,000

923,000

Number of non-zero-cost accommodations (50.6%)

210,000

467,000

Annual cost of accommodation

$12.60 million

$28.02 million

Table 7: Estimated Reasonable Accommodation Costs to State and Local Government Employers

Cost of accommodation

Lower Bound

(32%)

Upper Bound

(71%)

Number of women needing accommodation

55,000

121,000

Number of non-zero-cost accommodations (50.6%)

28,000

61,000

Annual cost of accommodation

$1.68 million

$3.66 million

Table 8: Estimated Reasonable Accommodation Costs to the Federal Government

Cost of accommodation

Lower Bound

(32%)

Upper Bound

(71%)

Number of women needing accommodation

17,000

38,000

Number of non-zero-cost accommodations (50.6%)

9,000

19,000

Annual cost of accommodation

$540,000

$1.14 million

Table 9: One-Time Administrative Costs

Number of

Establishments

(a)

Time for Rule

Familiarization

(b)

Equal Opportunity

Officer Fully-Loaded

Wage

(c)

Rule

Familiarization

Cost

(a) × (b) × (c)

Private employers in

States with existing

PWFA-type laws

1.4 million

0.75 hours

$113.51

$119.19 million

Private employers in

States without

existing PWFA-type

laws

1.3 million

2.25 hours

$113.51

$332.03 million

Public employers in

States with existing

PWFA-laws

3,255

461

0.75 hours

$76.03

$186,000

Public employers in

States without

existing PWFA-type

laws

2,533

462

2.25 hours

$76.03

$433,000

461

This is based on the distinct number of State and local government filers of the 2021 EEO-4 survey where

available, and the 2021 Annual Survey of Public Employment & Payroll (ASPEP) when not available.

462

Id.

Federal Government

209

463

2.25 hours

$103.76

464

$49,000

Total

$451.89 million

Thus, the overall economic cost on the U.S. economy of providing reasonable

accommodations pursuant to the rule and underlying statute is estimated to be between $14.82

million and $32.82 million annually.

The costs in Tables 6, 7, and 8 likely overestimate the costs to covered entities in at least

six respects:

• The estimated one-time cost of $300 per non-zero-cost accommodation is based on costs

of accommodations for individuals with disabilities generally, not only those related to

pregnancy, among the JAN survey respondents. The Commission believes that the

average cost of accommodations related to pregnancy, childbirth, or related medical

conditions is less than the average cost of disability-related accommodations because

many of the reasonable accommodations requested under the PWFA will be simple and

inexpensive to provide, and the vast majority will be temporary.

• The sample obtained in the JAN study may not be representative of all employers,

because employers who consult with JAN are likely to be facing more difficult and costly

accommodation issues than employers overall.

465

463

See EEOC, Department or Agency List with Second Level Reporting Components, https://www.eeoc.gov/federal-

sector/management-directive/department-or-agency-list-second-level-reporting-components (last visited Mar. 25,

2024).

464

As described above, a GS-14, Step 5 salary is $63.21 per hour. See U.S. Off. of Pers. Mgmt., Salary Table 2023-

RUS (Jan. 2023), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-

tables/pdf/2023/RUS_h.pdf. This is then adjusted for average hourly benefits for Federal employees. See Cong.

Budget Off., Comparing the Compensation of Federal and Private-Sector Employees, 2011 to 2015, at 14 (Apr. 25,

2017), https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/52637-federalprivatepay.pdf (reporting

that the average benefits for Federal employees range from $21.30 per hour to $29.80 per hour). This analysis uses

the high estimate of $29.80 to compute the total hourly compensation at $93.01 ($63.21 + $29.80). The Commission

was unable to find data on overhead costs for the Federal Government. The Commission assumed the rate to be the

same as in the private sector (17 percent), see supra note 467, totaling $10.75 ($63.21 x 0.17) per hour. This resulted

in a fully-loaded hourly compensation rate of $103.76 ($63.21 + 29.80 + $10.75).

465

JAN provides free assistance regarding workplace accommodation issues. See generally Job Accommodation

Network, https://askjan.org/ (last visited Mar. 25, 2024).

• The estimate does not account for the fact that some employees who will be entitled to

reasonable accommodations under the PWFA and the rule are independently entitled to

accommodations under the ADA or Title VII, to break time and a private place to pump

at work under the PUMP Act, and, in some cases, leave under the FMLA or the Federal

Employees Paid Leave Act.

466

• The estimate does not account for the fact that some employers voluntarily provide

accommodations to employees affected by pregnancy, childbirth, or related medical

conditions and may not incur new costs.

• This analysis does not account for the fact that not all employees who seek

accommodations will meet the definition of “qualified,” and an employer may decline to

provide a reasonable accommodation if doing so creates an undue hardship.

The Commission did not include costs related to processing requests for accommodation

in its estimate because it expects these costs to be extremely low. Employers that are covered by

State or local laws substantially similar to the PWFA already have these procedures in place. The

Commission assumes that employers not covered by such State or local laws, and the Federal

Government, will adapt existing procedures for providing accommodations under Title VII and

the ADA and for providing leave under the FMLA.

One-Time Administrative Costs for Covered Entities

Administrative costs, which include rule familiarization, posting new EEO posters, and

updating EEO policies and handbooks, represent additional, one-time direct costs to covered

entities.

It is estimated that in States that do not already have laws substantially similar to the

PWFA, compliance activities for a covered entity would take an average of 135 minutes, or 2.25

466

Brown et al., supra note 377, at 6 (finding that about 56 percent of U.S. employees were eligible for FMLA in

2018, and 25 percent of the FMLA leave taken in the prior 12 months accounted for the arrival of a new child).

hours, by an Equal Opportunity Officer who is paid a fully-loaded wage of $113.51 per hour

467

($76.03 for a State or local government employee).

468

In States with already existing laws similar

to the PWFA, an Equal Opportunity Officer will take an average of 45 minutes for compliance

activities. For the Federal Government, which does not have an existing PWFA, it is estimated

that compliance activities would take an average of 135 minutes by an Equal Opportunity Officer

at a GS 14-5 salary.

469

These calculations are displayed in Table 9.

Totals and Discount Rates

Total costs for providing reasonable accommodations in each year are estimated by

multiplying the number of non-zero accommodations in Tables 6-8 above by the upfront cost of

$300. Because these are assumed to be durable accommodations, we assume that an employer

that acquires an accommodation in a given year will reuse the accommodation throughout its

useful life. Throughout the document, we assume a useful life of 5 years, which amounts to an

average annual cost of $60. To more accurately reflect the present value of these upfront

expenses, EEOC annualizes the total costs.

467

The Commission anticipates that the bulk of the workload under this rule would be performed by employees in

occupations similar to those associated with the Standard Occupational Classification (SOC) code of SOC 11-3121

(Human Resources Managers). According to the U.S. Bureau of Labor Statistics, the mean hourly wage rate for

Human Resources Managers in May 2022 was $70.07. See U.S. Dep’t of Lab., Bureau of Lab. Stat., Employment of

Human Resources Managers, by State, May 2022 (2022), https://www.bls.gov/oes/current/oes113121.htm#st. For

this analysis, the Commission used a fringe benefits rate of 45 percent and an overhead rate of 17 percent, resulting

in a fully-loaded hourly compensation rate for Human Resources Managers of $113.51 ($70.07 + ($70.07 × 0.45) +

($70.07 × 0.17)).

468

U.S. Dep’t of Lab., Bureau of Lab. Stat., Employer Costs for Employee Compensation for State and Local

Government Workers by Occupational and Industry Group (Mar. 17, 2023),

https://www.bls.gov/news.release/archives/ecec_03172023.pdf. Total employer compensation costs for State and

local government averaged $57.60 per hour worked (see Table 3 row 1, column 1 of the cited document). Average

compensation ranged from $68.57 in management, professional, and related occupations (row 3) to $40.05 in sales

and office occupation (row 7). This analysis uses the high estimate of $68.57 per hour worked, which includes

average wage and salary cost of $43.87 per hour (row 3, column 3) and average benefit costs of $24.70 per hour

(row 3, column 5). The Commission was not able to find data on overhead costs for State and local governments.

The Commission assumed the rate to be the same as in the private sector (17 percent), see supra note 467, totaling

$7.46 ($43.87 x 0.17) per hour. This resulted in a fully-loaded hourly compensation rate of $76.03 ($43.87 + $24.70

+ $7.46).

469

In 2023, a GS-14, Step 5 salary is $63.21 per hour. See U.S. Off. of Pers. Mgmt., Salary Table 2023-RUS (Jan.

2023), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf.

Adding the annualized cost of providing reasonable accommodations, assuming a useful

life of 5 years (between $14.82 million and $32.82 million), to the estimated administrative costs

in year 1 ($451.89 million) yields estimated total costs of between $466.71 million and $484.71

million in the first year, and between $14.82 million and $32.82 million annually thereafter.

Table 10 provides the analysis of discount rates at 3% and 7%, as required by OMB

Circular A-4, for the lower and upper bound costs of providing accommodations. Table 11

provides that information for the one-time administrative costs.

Table 10: Annualized Reasonable Accommodation Costs (in $ millions) at 0% (Undiscounted), 3% and 7%

Discount Rates

470

Private - All

Federal

Government

State and Local

Government

Total

Lower Bound

Estimated total reasonable accommodation

costs

$63.0

$2.7

$8.4

$74.1

Assuming useful life of accommodations to be 5 years

Annualized, 0% discount rate, 5 years

$12.60

$0.54

$1.68

$14.82

Annualized, 3% discount rate, 5 years

$13.36

$0.57

$1.78

$15.71

Annualized, 7% discount rate, 5 years

$14.36

$0.62

$1.91

$16.89

Assuming useful life of accommodations to be 10 years

Annualized, 0% discount rate, 10 years

$6.30

$0.27

$0.84

$7.41

Annualized, 3% discount rate, 10 years

$7.17

$0.31

$0.96

$8.43

Annualized, 7% discount rate, 10 years

$8.38

$0.36

$1.12

$9.86

Upper Bound

Estimated total reasonable accommodation

costs

$140.1

$5.7

$18.3

$164.1

Assuming useful life of accommodations to be 5 years

Annualized, 0% discount rate, 5 years

$28.02

$1.14

$3.66

$32.82

Annualized, 3% discount rate, 5 years

$29.70

$1.21

$3.88

$34.79

Annualized, 7% discount rate, 5 years

$31.93

$1.30

$4.17

$37.40

Assuming useful life of accommodations to be 10 years

Annualized, 0% discount rate, 10 years

$14.01

$0.57

$1.83

$16.41

Annualized, 3% discount rate, 10 years

$15.95

$0.65

$2.08

$18.68

Annualized, 7% discount rate, 10 years

$18.64

$0.76

$2.44

$21.84

Table 11: Annualized Administrative Costs

Estimated administrative costs (in $ millions)

Year

Private–All

Federal

Government

State and Local

Government

Total

$451.22

$0.049

$0.619

$451.89

470

Exec. Off. of the President, Off. of Mgmt. & Budget, Circular A-4 (Sept. 17, 2003),

https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/ (addressing discount rates).

Annualized, 3% discount rate, 10 years

$51.36

$0.006

$0.07

$51.44

Annualized, 7% discount rate, 10 years

$60.04

$0.007

$0.08

$60.13

Total, 3% discount rate, 10 years (in $

millions)

$438.08

$0.05

$0.60

$438.73

Total, 7% discount rate, 10 years (in $

millions)

$421.70

$0.05

$0.58

$422.33

Time Horizon of Analysis

Neither the PWFA nor the rule contains a sunset provision.

The cost analysis assumes a one-time administrative cost for employers, and the amount

of time varies depending on whether the employer is in a State with or without its own version of

the PWFA.

The cost and benefit analysis calculates the annual cost of accommodations per pregnant

employee who may need them. Because different employees enter the labor market every year

and may become pregnant, or an employee who was pregnant may become pregnant again, the

Commission does not believe that the need for accommodations or the costs or benefits will

substantially change over time.

Range of Regulatory Alternatives

The range of alternatives available to the Commission consistent with the Executive

Order is narrow:

• Because 42 U.S.C. 2000gg–3(a) requires the Commission to issue regulations, the

Commission could not consider non-regulatory alternatives.

• Because 42 U.S.C. 2000gg determines coverage, the Commission could not consider

exemptions based on firm size or geography.

• Because 42 U.S.C. 2000gg–2 provides how the statute will be enforced, the Commission

could not consider alternative methods of enforcement, such as market-oriented

approaches, performance standards, default rules, monitoring by other agencies, or

reporting.

• Because section 109 of the PWFA states when the law will go into effect, the

Commission could not consider alternative compliance dates.

471

Further, because the PWFA is a Federal law that intentionally sets a national standard, the

Commission could not consider deferring to State or local regulations. The one exception to this

is that 42 U.S.C 2000gg–5(a)(1) provides that nothing in the PWFA invalidates or limits rights

under Federal, State, or local laws that provide equal or greater protection for individuals

affected by pregnancy, childbirth, or related medical conditions. The rule includes this language.

Thus, the rule does not preempt State or local regulations that provide equal or greater protection

relative to the PWFA.

The Commission considered two regulatory alternatives, discussed below. The

Commission does not believe that either alternative would decrease the costs for covered entities.

Definition of “In the Near Future”

The statute at 42 U.S.C. 2000gg(6) defines a “qualified” employee to include employees

whose inability to perform one or more essential functions of the job is temporary, who will be

able to perform the essential functions “in the near future,” and whose inability to perform

essential function(s) can be reasonably accommodated without undue hardship.

The final rule defines “in the near future” to mean “generally within 40 weeks” for

pregnancy only. The Commission considered, but rejected, shorter periods such as 6 months or

less

472

for several reasons. First, pregnancy generally lasts 40 weeks; a rule that an employee is

471

136 Stat. 6089.

472

H.R. Rep. No. 117-27, pt. 1, at 28 (citing Robert, 691 F.3d at 1218). Although it does not define “in the near

future,” Robert cites to Epps, 353 F.3d at 593, which found that under the ADA, a request for leave that would last 6

months was too long to be “in the near future” to qualify as a possible reasonable accommodation.

only “qualified” if they are able to perform all the essential functions of the job within 6 months

of the function(s) being temporarily suspended could classify many employees who need a

temporary suspension of an essential function(s) for a longer period as “unqualified” and

therefore ineligible for reasonable accommodations. The Commission believes that this outcome

would frustrate the purpose of the statute, which is to enable employees who need temporary

accommodations related to pregnancy, childbirth, or related medical conditions to continue

working.

Second, defining “in the near future” to mean “generally 40 weeks” for pregnancy does

not mean that the employer will be required to actually provide a reasonable accommodation for

that length of time. The definition of “in the near future” is one step in the definition of

“qualified”; even if an employee can meet this part of the definition, an employer still may refuse

to provide an accommodation if the employer cannot reasonably accommodate the temporary

suspension of the essential function or if doing so would impose “undue hardship” (defined as

significant difficulty or expense, relative to the employer’s overall resources). Additionally, not

all employees who need an essential function(s) suspended will need it suspended for 40 weeks.

It is the Commission’s hope that setting a single standard for the meaning of “in the near future”

for pregnancy will benefit both employers and employees by reducing litigation over the

meaning of the term and placing the focus on the central issue of whether the accommodation

would impose an undue hardship.

If the definition of “qualified” is “generally 40 weeks” rather than “less than 6 months,”

more pregnant employees will be able to meet the definition of qualified. It is not possible to

estimate how many. The Commission anticipates that there will be little or no additional cost to

covered entities because it is the act of providing an accommodation—not classifying an

individual as meeting part of the definition of qualified—that imposes actual costs on the

employer. A covered entity can still argue that the accommodation would impose an undue

hardship. Further, even if it provides the accommodation, the covered entity is likely to

experience cost savings from not having to recruit, hire, or train a new employee.

The Commission also considered not defining the term “in the near future,” but

determined that doing so would harm employers by increasing uncertainty and harm employees

by failing to ensure equal treatment.

Predictable Assessments

In the section defining “undue hardship,” the rule lists four job modifications often

sought by pregnant employees that, in virtually all cases, will be found to be reasonable

accommodations that do not impose undue hardship: (1) carrying or keeping water near and

drinking, as needed; (2) allowing additional restroom breaks, as needed; (3) allowing sitting for

those whose work requires standing and standing for those whose work requires sitting, as

needed; and (4) allowing breaks to eat and drink, as needed.

As explained in the NPRM, these accommodations are repeatedly discussed in the

PWFA’s legislative history as common sense, low-cost accommodations that most pregnant

employees will need.

473

To increase efficiency and to decrease the time that it takes for

employees to receive these accommodations, the Commission has determined that these

modifications will in virtually all cases be determined to be reasonable accommodations that do

not impose an undue hardship.

As an alternative to providing that these simple, common-sense modifications will

virtually always be determined to be reasonable accommodations that do not impose undue

hardship, the Commission considered taking the position that such modifications would always

473

See H.R. Rep.117- 27, pt. 1, at 11, 22, 29, 113; Fighting for Fairness, supra note 394, at 4 (statement of Rep.

Suzanne Bonamici); Long Over Due, supra note 395, at 7 (statement of Rep. Jerrold Nadler), 25 (statement of Iris

Wilbur, Vice President of Government Affairs & Public Policy, Greater Louisville, Inc., The Metro Chamber of

Commerce), 83 (statement of Rep. Barbara Lee). See also 168 Cong. Rec. H10,527 (daily ed. Dec. 23, 2022)

(statement of Rep. Jerrold Nadler); 168 Cong. Rec. S10,081 (daily ed. Dec. 22, 2022) (statement of Sen. Robert P.

Casey, Jr.); 168 Cong. Rec. S7,079 (daily ed. Dec. 8, 2022) (statement of Sen. Robert P. Casey, Jr.); 168 Cong. Rec.

H2,324 (daily ed. May 14, 2021) (statement of Rep. Suzanne Bonamici).

be reasonable accommodations and never impose undue hardship. The Commission decided

against this approach because some employers may encounter circumstances that would lead to a

determination that these modifications are not reasonable accommodations and/or would impose

an undue hardship.

The Commission also considered the option of not including information regarding

“predictable assessments” in the rule. The Commission determined that providing this

information will be helpful to the public because doing so explains to covered entities and

employees how the Commission intends to enforce the PWFA, potentially increases voluntary

compliance, and increases certainty for covered entities, which will decrease costs.

The Commission does not anticipate that the rule’s “predictable assessments” section

would increase costs for covered entities. The examples given are low- to no-cost

accommodations, and under the rule, the employer may still claim that these modifications

would impose an undue hardship.

Uncertainty in Benefits, Costs, and Net Benefits

The Commission has based its estimates of the costs and benefits of the rule on the best

data available to it at the current time. Nevertheless, the Commission recognizes these estimates

are somewhat uncertain in several respects.

The data used to estimate the cost of providing accommodations as required by the

PWFA come entirely from research on the cost of accommodations for individuals with

disabilities; the Commission is not aware of any data concerning the cost of accommodations

that relate specifically to pregnancy, childbirth, or related medical conditions. The reliance on

ADA data has likely resulted in an inflated cost estimate. As discussed above, the Commission

believes that the percentage of accommodations that do not cost anything to implement is likely

to be higher for accommodations related specifically to pregnancy, childbirth, or related medical

conditions than for accommodations needed because of a disability. Additionally, in some cases,

an individual who is entitled to an accommodation under the PWFA may be entitled to it under

another law or policy. For example, although leave often may be needed for recovery from

childbirth, Bureau of Labor Statistics data show that 88 percent of employees already have

access to some unpaid family leave independent of the PWFA, either through the FMLA or

otherwise.

474

Therefore, with respect to these individuals, any costs attributable to or benefits

accruing from the PWFA for leave related to childbirth would be limited to the short period of

time during which such leave is required due to childbirth but unavailable from those other

sources.

Conclusion

As detailed above, the estimated annual cost of providing accommodations required by

the rule and underlying statute—but not independently required by a State or local law

substantially similar to the PWFA—is estimated to be up to $28.02 million for private

employers, up to $3.66 million for State and local governments, and up to $1.14 million for the

Federal Government. In addition, employers are expected to face one-time costs associated with

complying with the rule and underlying statute. These are estimated to be $451.22 million for

private employers ($119.19 million for private employers in States with existing PWFA-type

laws + $332.03 million for private employers in States without existing PWFA-type laws),

$619,000 for State and local governments ($186,000 for public employers in States with existing

PWFA-type laws + $433,000 for public employers in States without existing PWFA-type laws),

and $49,000 for the Federal Government.

These figures are almost certainly overestimates of the costs imposed by the rule, in part

because some of the accommodations required by the rule and underlying statute are already

required under the ADA and Title VII and some employers voluntarily provide accommodations.

474

U.S. Dep’t of Labor, Bureau of Lab. Stat., Access to Paid and Unpaid Family Leave in 2018 (Feb. 27, 2019),

https://www.bls.gov/opub/ted/2019/access-to-paid-and-unpaid-family-leave-in-2018.htm.

Due to a lack of data, however, the Commission was unable to account for this overlap in the

above analysis.

The Commission has nevertheless determined that the benefits of the rule and underlying

statute justify its costs.

475

The annual costs associated with the main requirement of the rule—to

give reasonable accommodations to individuals who need them because of pregnancy, childbirth,

or related medical conditions—are not significant under section 3(f)(1) of E.O. 12866. And

although the aggregate one-time compliance costs are in excess of $200 million, and therefore

significant, the estimated cost on a per-establishment basis is low—between $57.02 and $255.40,

depending on whether or not the State in which the entity is located has a law substantially

similar to the PWFA and on the type of employer.

The benefits of the rule and underlying statute to employees affected by pregnancy,

childbirth, or related medical conditions, however, are significant, including improved health,

improved economic security, and increased equity, human dignity, and fairness. The number of

individuals who may experience such benefits is relatively large—the number of employees who

will be newly entitled to reasonable accommodations for pregnancy and may need them is

estimated to be between approximately 488,000 and 1.082 million per year. This number does

not include the children, family members, and members of society at large who also will

potentially enjoy some of the benefits listed above.

The Commission further concludes that the rule is tailored to impose the least burden on

society consistent with achieving the regulatory objectives, and that the agency has selected the

approach that maximizes net benefits. The range of alternatives available to the Commission was

extremely limited. The alternatives that were consistent with the PWFA’s statutory language

would not, in the Commission’s opinion, reduce costs to employers.

475

76 FR 3821 (Jan. 21, 2011).

Regulatory Flexibility Act and Executive Order 13272 (Proper Consideration of Small

Entities in Agency Rulemaking)

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, requires the Commission to

evaluate the economic impact of this rule on small entities. The RFA defines small entities to

include small businesses, small organizations, including not-for-profit organizations, and small

governmental jurisdictions. The Commission must determine whether the rule would impose a

significant economic impact on a substantial number of such small entities.

When an agency issues a rulemaking proposal, the RFA requires the agency to “prepare

and make available for public comment an initial regulatory flexibility analysis” which will

“describe the impact of the rule on small entities.”

476

Section 605 of the RFA allows an agency to

certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a

significant economic impact on a substantial number of small entities. For the reasons outlined

below, the Chair of the Commission hereby certifies that this rule will not have a significant

economic impact on a substantial number of small entities.

Small businesses range in size, based on the industry, between 1 to 1,500 employees;

477

the PWFA and the rule apply to all employers in the United States with 15 or more employees.

Thus, for purposes of the RFA, the Commission has determined that the regulation will have an

economic impact on a substantial number of small entities.

478

However, the Commission has determined that the economic impact on entities affected

by the PWFA and the rule will not be “significant.”

As detailed in the FRIA above, the impact on small entities in States and localities that

have laws substantially similar to the PWFA will be limited to a one-time administrative cost of

476

5 U.S.C. 603(a).

477

U.S. Small Bus. Admin., Table of Size Standards (Mar. 17, 2023), https://www.sba.gov/document/support-table-

size-standards.

478

For example, there are over 1 million businesses with between 20 and 500 employees. See U.S. Dep’t of Com.,

Census Bureau, Small Business Week: April 30-May 6, 2023 (Apr. 30, 2023),

https://www.census.gov/newsroom/stories/small-business-week.html.

approximately $85.13 in the first year for small private employers (0.75 hours × $113.51 hourly

wage), and $57.02 for small State or local government employers (0.75 hours × $76.03 hourly

wage). Since these entities are already required to provide accommodations consistent with the

PWFA, they will face no additional costs for accommodations.

Small entities that are not already subject to State or local laws substantially similar to the

PWFA will face a one-time administrative cost of approximately $255.40 for private employers

(2.25 hours × $113.51 hourly wage) and $171.07 for State or local government employers (2.25

hours × $76.03 hourly wage), plus annual costs associated with providing reasonable

accommodations consistent with the rule and underlying statute. To calculate the cost of

providing such accommodations, the Commission has constructed cost estimates for a range of

small business sizes.

Table 12: Annual Costs for Reasonable Accommodations for Small Businesses Based on Size

Number of

Employees

33%

Women

Aged 16-

7.1%

Pregnant

In a

Given

Year

Needing

Accommodations: 32%

(Lower Bound Estimate)

– 71% (Upper Bound

Estimate)

50.6% Non-Zero-

Cost

Accommodations:

Lower Bound

Estimate – Higher

Bound Estimate

(Rounded Up)

Total Expected Cost:

Lower Bound

Estimate – Higher

Bound Estimate

4.95

0.351

0.112 – 0.249

$60

16.5

1.172

0.375 – 0.832

$60

100

2.34

0.749 – 1.66

$60

150

49.5

3.515

1.124 – 2.496

1 – 2

$60 – $120

200

4.686

1.5 – 3.327

1 – 2

$60 – $120

250

82.5

5.858

1.875 – 4.159

1 – 3

$60 – $180

500

165

11.715

3.749 – 8.318

2 – 5

$120 – $300

750

247.5

17.573

5.623 – 12.477

3 – 7

$180 – $420

1000

330

23.43

7.498 – 16.635

4 – 9

$240 – $540

1250

412.5

29.288

9.372 – 20.794

5 – 11

$300 – $660

1500

495

35.145

11.246 – 24.953

6 – 13

$360 – $780

Using the amounts for a small entity with 500 employees as an example, the calculation

was conducted as follows:

• Based on data outlined in the FRIA above, the Commission estimates that approximately

33 percent, or 165, of these employees are women of reproductive age (aged 16–50

years),

479

and that approximately 7.1 percent of these, or 11.715 employees, will give

birth to at least one child during a given year.

• The Commission again adopts 71 percent as its upper bound estimate and 32 percent as

its lower bound estimate of the percentage of pregnant employees who will need a

reasonable accommodation related to pregnancy.

• Thus, the Commission estimates that between 3.749 (32 percent of 11.715) and 8.318 (71

percent of 11.715) employees of a small entity with 500 employees will require annually

a reasonable accommodation under the PWFA.

• The Commission further assumes, based on data regarding the average cost of reasonable

accommodations for individuals with disabilities presented in the FRIA above, that 50.6

percent of the required accommodations will have a non-zero cost.

• This yields lower and upper bound estimates of the number of non-zero-cost

accommodations of 1.9 (50.6 percent of 3.749) and 4.21 (50.6 percent of 8.318),

respectively. Rounding up these numbers, the Commission estimates that a small entity

with 500 employees will be required to provide between 2 and 5 additional non-zero-cost

accommodations per year as a result of the rule and underlying statute. Multiplying by an

average cost of $60 per year for each accommodation, the estimated total cost for

accommodations required under the PWFA per small entity with 500 employees is

between $120 and $300.

Thus, the annual cost of providing reasonable accommodations for entities not already

subject to State or local laws substantially similar to the PWFA is estimated to be between $60

479

The Commission acknowledges that there may be industries in which the representation rate for individuals

capable of giving birth is higher than 33 percent. The Commission has determined, however, that these differences

are not large enough to affect the decision to certify that the final rule will not have a significant economic impact on

a substantial number of small entities. For a discussion in the response to comments received, see supra, Summary of

the Commission’s Certification That the Rule Will Not Have a Significant Economic Impact on a Substantial

Number of Small Entities in the preamble.

(lower bound estimate, for entities with 15 employees) and $780 (upper bound estimate, for

entities with 1,500 employees).

The costs detailed above are not likely to constitute a “significant” economic impact for

many small entities, if any. Further, the Commission notes that all businesses in the United States

with 15 or more employees already must comply with Title VII and the ADA, both of which

could, in certain circumstances, require accommodations for employees affected by pregnancy,

childbirth, or related medical conditions. Further, Title VII, the ADA, and State laws requiring

accommodations for pregnancy apply to all industries; given that, the Commission does not

believe that the PWFA will have a greater effect in any industry.

Accordingly, the Chair of the Commission hereby certifies that this rule will not have a

significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. (PRA), requires the EEOC

to consider the impact of information collection burdens imposed on the public. The PRA

typically requires an agency to provide notice and seek public comments on any “collection of

information” contained in a rule.

480

The Commission has determined that there is no new requirement for information

collection associated with this rule.

Consequently, this rule does not require review by the Office of Management and Budget

under the authority of the PRA.

Executive Order 13132 (Federalism)

480

See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.

The Commission has reviewed this rule in accordance with Executive Order 13132

regarding federalism and has determined that it does not have “federalism implications.” The

statute at 42 U.S.C. 2000gg(2) provides that the PWFA applies to employers as that term is

defined in Title VII. States and local governments are subject to Title VII, including its

prohibition on sex discrimination, which includes discrimination based on pregnancy, childbirth,

or related medical conditions. The statute at 42 U.S.C. 2000gg–4 provides that a State will not be

immune under the 11th Amendment to actions brought under the PWFA in a court of competent

jurisdiction and that in any action against a State for a violation of the PWFA, remedies,

including remedies both at law and in equity, are available for such violation to the same extent

that they are available against any other public or private entity. The rule does not limit or

expand these statutory definitions. Additionally, the regulation will not have substantial direct

effects “on the relationship between the national government and the States, or on the

distribution of power and responsibilities among the various levels of government.”

Unfunded Mandates Reform Act of 1995

Section 202(a) of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that the

Commission determine whether a regulation proposes a Federal mandate that may result in the

expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of

$100 million or more in a single year (adjusted annually for inflation). However, 2 U.S.C. 1503

excludes from UMRA’s ambit any provision in a final regulation that, among other things,

enforces constitutional rights of individuals or establishes or enforces any statutory rights that

prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or

disability; thus, UMRA does not apply to the PWFA.

481

H.R. Report No. 117-27, pt. 1, at 41 (containing a report by the Congressional Budget Office stating that the

PWFA was not reviewed “for intergovernmental or private-sector mandates” because it falls within the exception to

the Unfunded Mandates Reform Act as it “would extend protections against discrimination in the workplace based

on sex to employees requesting reasonable accommodation for pregnancy, childbirth, or related medical

conditions”).

Plain Language

The Commission has attempted to draft this final rule in plain language.

Assessment of Federal Regulations and Policies on Families

The undersigned hereby certifies that the rule will not adversely affect the well-being of

families, as discussed under section 654 of the Treasury and General Government

Appropriations Act of 1999. To the contrary, by providing reasonable accommodation to

employees with known limitations related to, affected by, or arising out of pregnancy, childbirth,

or related medical conditions, absent undue hardship, the rule will have a positive effect on the

economic well-being and security of families.

Executive Order 13175 (Indian Tribal Governments)

This rule does not have tribal implications under Executive Order 13175 that require a

tribal summary impact statement. The rule will not have substantial direct effects on one or more

Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the

distribution of power and responsibilities between the Federal Government and Indian tribes.

The definition of “covered entity” in the PWFA follows that of Title VII; Title VII exempts “a

corporation wholly owned by an Indian tribe.”

482

Executive Order 12988 (Civil Justice Reform)

This rule was drafted and reviewed in accordance with Executive Order 12988 and will

not unduly burden the Federal court system. The rule was: (1) reviewed to eliminate drafting

482

42 U.S.C. 2000e(b).

errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal

standard for affected conduct and to promote burden reduction.

List of Subjects in 29 CFR Part 1636

Administrative practice and procedure, Equal employment opportunity, Reasonable

accommodation, Pregnancy.

For the Commission:

__________________

Charlotte A. Burrows,

Chair.

For the reasons set forth in the preamble, the EEOC amends 29 CFR chapter XIV by

adding part 1636 to read as follows:

PART 1636—PREGNANT WORKERS FAIRNESS ACT

Sec.

1636.1 Purpose.

1636.2 Definitions—general.

1636.3 Definitions—specific to the PWFA.

1636.4 Nondiscrimination with regard to reasonable accommodations related to pregnancy.

1636.5 Remedies and enforcement.

1636.6 Waiver of State immunity.

1636.7 Relationship to other laws.

1636.8 Severability.

Appendix A to Part 1636—Interpretive Guidance on the Pregnant Workers Fairness Act

Authority: 42 U.S.C. 2000gg et seq.

§ 1636.1 Purpose.

(a) The purpose of this part is to implement the Pregnant Workers Fairness Act, 42 U.S.C.

2000gg et seq. (PWFA).

(b) The PWFA:

(1) Requires a covered entity to make reasonable accommodation to the known

limitations of a qualified employee related to pregnancy, childbirth, or related medical

conditions, absent undue hardship;

(2) Prohibits a covered entity from requiring a qualified employee to accept an

accommodation, other than a reasonable accommodation arrived at through the

interactive process;

(3) Prohibits the denial of employment opportunities based on the need of the covered

entity to make reasonable accommodation to the known limitations related to the

pregnancy, childbirth, or related medical conditions of a qualified employee;

(4) Prohibits a covered entity from requiring a qualified employee to take leave if another

reasonable accommodation can be provided to the known limitations related to the

pregnancy, childbirth, or related medical conditions of the employee;

(5) Prohibits a covered entity from taking adverse actions in terms, conditions, or

privileges of employment against a qualified employee on account of the employee

requesting or using a reasonable accommodation for known limitations related to

pregnancy, childbirth, or related medical conditions;

(6) Prohibits discrimination against an employee for opposing unlawful discrimination

under the PWFA or participating in a proceeding under the PWFA;

(7) Prohibits coercion of individuals in the exercise of their rights under the PWFA; and

(8) Provides remedies for individuals whose rights under the PWFA are violated.

§ 1636.2 Definitions—general.

(a) Commission means the Equal Employment Opportunity Commission established by section

705 of the Civil Rights Act of 1964, 42 U.S.C. 2000e–4.

(b) Covered entity means respondent as defined in section 701(n) of the Civil Rights Act of

1964, 42 U.S.C. 2000e(n), and includes:

(1) Employer, which is a person engaged in an industry affecting commerce who has 15

or more employees, as defined in section 701(b) of the Civil Rights Act of 1964, 42

U.S.C. 2000e(b);

(2) Employing office, as defined in section 101 of the Congressional Accountability Act

of 1995, 2 U.S.C. 1301, and 3 U.S.C. 411(c);

(3) An entity employing a State employee (or the employee of a political subdivision of a

State) described in section 304(a) of the Government Employee Rights Act of 1991, 42

U.S.C. 2000e–16c(a); and

(4) An entity to which section 717(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e–

16(a), applies.

(1) An employee (including an applicant), as defined in section 701(f) of the Civil Rights

Act of 1964, 42 U.S.C. 2000e(f);

(2) [Reserved]

(3) A covered employee (including an applicant), as defined in 3 U.S.C. 411(c);

(4) A State employee (including an applicant) (or the employee or applicant of a political

subdivision of a State) described in section 304(a) of the Government Employee Rights

Act of 1991, 42 U.S.C. 2000e–16c(a); and

(5) An employee (including an applicant) to which section 717(a) of the Civil Rights Act

of 1964, 42 U.S.C. 2000e–16(a), applies.

(d) Person means person as defined by section 701(a) of the Civil Rights Act of 1964, 42 U.S.C.

2000e(a).

§ 1636.3 Definitions—specific to the PWFA.

(a) Known limitation. Known limitation means a physical or mental condition related to, affected

by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the

employee’s representative has communicated to the covered entity, whether or not such

condition meets the definition of disability specified in section 3 of the Americans with

Disabilities Act of 1990, 42 U.S.C. 12102.

(1) Known, in terms of limitation, means the employee or the employee’s representative

has communicated the limitation to the employer.

(2) Limitation means a physical or mental condition related to, affected by, or arising out

of pregnancy, childbirth, or related medical conditions, of the specific employee in

question. “Physical or mental condition” is an impediment or problem that may be

modest, minor, and/or episodic. The physical or mental condition may be that an

employee affected by pregnancy, childbirth, or related medical conditions has a need

or a problem related to maintaining their health or the health of the pregnancy. The

definition also includes when an employee is seeking health care related to

pregnancy, childbirth, or a related medical condition itself. The physical or mental

condition can be a limitation whether or not such condition meets the definition of

disability specified in section 3 of the Americans with Disabilities Act of 1990, 42

U.S.C. 12102.

(b) Pregnancy, childbirth, or related medical conditions. “Pregnancy” and “childbirth” refer to

the pregnancy or childbirth of the specific employee in question and include, but are not limited

to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include

infertility, fertility treatment, and the use of contraception); labor; and childbirth (including

vaginal and cesarean delivery). “Related medical conditions” are medical conditions relating to

the pregnancy or childbirth of the specific employee in question. The following are examples of

conditions that are, or may be, “related medical conditions”: termination of pregnancy, including

via miscarriage, stillbirth, or abortion; ectopic pregnancy; preterm labor; pelvic prolapse; nerve

injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational

diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome;

hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel

syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs,

ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety,

depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination;

incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal

bleeding; menstruation; and lactation and conditions related to lactation, such as low milk

supply, engorgement, plugged ducts, mastitis, or fungal infections. This list is non-exhaustive.

representative, health care provider, or other representative of the employee.

(d) Communicated to the employer. Communicated to the employer, with respect to a known

limitation, means an employee or the employee’s representative has made the employer aware of

the limitation by communicating with a supervisor, a manager, someone who has supervisory

authority for the employee or who regularly directs the employee’s tasks (or the equivalent for an

applicant), human resources personnel, or another appropriate official, or by following the steps

in the covered entity’s policy to request an accommodation.

(1) The communication may be made orally, in writing, or by another effective means.

(2) The communication need not be in writing, be in a specific format, use specific

words, or be on a specific form in order for it to be considered “communicated to the

employer.”

(e) Consideration of mitigating measures. (1) The determination of whether an employee has a

limitation shall be made without regard to the ameliorative effects of mitigating measures.

(2) The non-ameliorative effects of mitigating measures, such as negative side effects of

medication or burdens associated with following a particular treatment regimen, may be

considered when determining whether an employee has a limitation.

(f) Qualified employee. Qualified employee with respect to an employee with a known limitation

under the PWFA means:

(1) An employee who, with or without reasonable accommodation, can perform the

essential functions of the employment position. With respect to leave as an

accommodation, the relevant inquiry is whether the employee is reasonably expected to

be able to perform the essential functions, with or without a reasonable accommodation,

at the end of the leave, if time off is granted, or if the employee is qualified as set out in

paragraph (f)(2) of this section after returning from leave.

(2) Additionally, an employee shall be considered qualified if they cannot perform one or

more essential functions if:

(i) Any inability to perform an essential function(s) is for a temporary period,

where “temporary” means lasting for a limited time, not permanent, and may

extend beyond “in the near future”;

(ii) The essential function(s) could be performed in the near future. This

determination is made on a case-by-case basis. If the employee is pregnant, it is

presumed that the employee could perform the essential function(s) in the near

future because they could perform the essential function(s) within generally 40

weeks of its suspension; and

(iii) The inability to perform the essential function(s) can be reasonably

accommodated. This may be accomplished by temporary suspension of the

essential function(s) and the employee performing the remaining functions of

their position or, depending on the position, other arrangements, including, but

not limited to: the employee performing the remaining functions of their position

and other functions assigned by the covered entity; the employee performing the

functions of a different job to which the covered entity temporarily transfers or

assigns the employee; or the employee being assigned to light duty or modified

duty or participating in the covered entity’s light or modified duty program.

(g) Essential functions. Essential functions mean the fundamental job duties of the employment

position the employee with a known limitation under the PWFA holds or desires. The term

“essential functions” does not include the marginal functions of the position.

(1) A job function may be considered essential for any of several reasons, including but

not limited to the following:

(i) The function may be essential because the reason the position exists is to

perform that function;

(ii) The function may be essential because of the limited number of employees

available among whom the performance of that job function can be distributed;

and/or

(iii) The function may be highly specialized so that the incumbent in the position

is hired for their expertise or ability to perform the particular function.

(2) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing

applicants for the job;

(iii) The amount of time that would be spent on the job performing the function

during the time the requested accommodation will be in effect;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

(h) Reasonable accommodation—generally. (1) With respect to an employee or applicant with a

known limitation under the PWFA, reasonable accommodation includes:

(i) Modifications or adjustments to a job application process that enable a

qualified applicant with a known limitation under the PWFA to be considered for

the position such qualified applicant desires;

(ii) Modifications or adjustments to the work environment, or to the manner or

circumstances under which the position held or desired is customarily performed,

that enable a qualified employee with a known limitation under the PWFA to

perform the essential functions of that position;

(iii) Modifications or adjustments that enable a covered entity’s employee with a

known limitation under the PWFA to enjoy equal benefits and privileges of

employment as are enjoyed by its other similarly situated employees without

known limitations; or

(iv) Temporary suspension of essential function(s) and/or modifications or

adjustments that permit the temporary suspension of essential function(s).

(2) To request a reasonable accommodation, the employee or the employee’s

representative need only communicate to the covered entity that the employee needs an

adjustment or change at work due to their limitation (a physical or mental condition

related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions).

(i) The communication may be made to any of the individuals in paragraph (d) of

this section. The provisions of paragraphs (d)(1) and (2) of this section, which

define what it means to communicate a limitation to a covered entity, apply to

communications under this paragraph (h)(2).

(ii) An employee’s request does not have to identify a medical condition, whether

from paragraph (b) of this section or otherwise, or use medical terms.

(3) To determine the appropriate reasonable accommodation, it may be necessary for the

covered entity to initiate an informal, interactive process as explained in paragraph (k) of

this section.

(i) Reasonable accommodation—examples. Reasonable accommodation may include, but is not

limited to:

(1) Making existing facilities used by employees readily accessible to and usable by

employees with known limitations under the PWFA;

(2) Job restructuring; part-time or modified work schedules; reassignment to a vacant

position; breaks for use of the restroom, drinking, eating, and/or resting; acquisition or

modification of equipment, uniforms, or devices, including devices that assist with lifting

or carrying for jobs that involve lifting or carrying; modifying the work environment;

providing seating for jobs that require standing, or allowing standing for jobs that require

sitting; appropriate adjustment or modifications of examinations or policies; permitting

the use of paid leave (whether accrued, as part of a short-term disability program, or any

other employer benefit) or providing unpaid leave for reasons including, but not limited

to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to

pregnancy or childbirth, or to attend health care appointments or receive health care

treatment related to pregnancy, childbirth, or related medical conditions; placement in the

covered entity’s light or modified duty program or assignment to light duty or modified

work; telework, remote work, or change of work site; adjustments to allow an employee

to work without increased pain or increased risk to the employee’s health or the health of

the pregnancy; temporarily suspending one or more essential functions of the position;

providing a reserved parking space if the employee is otherwise entitled to use employer-

provided parking; and other similar accommodations for employees with known

limitations under the PWFA.

(3) The reasonable accommodation of leave includes, but is not limited to, the examples

in paragraphs (i)(3)(i) through (iii) of this section.

(i) The ability to use paid leave (whether accrued, short-term disability, or another

employer benefit) or unpaid leave, including, but not limited to, leave during

pregnancy; to recover from childbirth, miscarriage, stillbirth, or other related

medical conditions; and to attend health care appointments or receive health care

treatments related to pregnancy, childbirth, or related medical conditions;

(ii) The ability to use paid leave (whether accrued, short-term disability, or

another employer benefit) or unpaid leave for a known limitation under the

PWFA; and

(iii) The ability to choose whether to use paid leave (whether accrued, short-term

disability or another employer benefit) or unpaid leave to the extent that the

covered entity allows employees using leave for reasons not related to, affected

by, or arising out of pregnancy, childbirth, or related medical conditions to choose

between the use of paid leave and unpaid leave.

(4) Reasonable accommodation related to lactation includes, but is not limited to:

(i) Breaks, a space for lactation, and other related modifications as required under

the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

(Pub. L. 117-328, Div. KK, 136 Stat. 4459, 6093 (2022)), if not otherwise

provided under the PUMP Act;

(ii) Accommodations related to pumping, such as, but not limited to, ensuring that

the area for lactation is in reasonable proximity to the employee’s usual work

area; that it is a place other than a bathroom; that it is shielded from view and free

from intrusion; that it is regularly cleaned; that it has electricity, appropriate

seating, and a surface sufficient to place a breast pump; and that it is in reasonable

proximity to a sink, running water, and a refrigerator for storing milk;

(iii) Accommodations related to nursing during work hours (where the regular

location of the employee’s workplace makes nursing during work hours a

possibility because the child is in close proximity); and

(iv) Other reasonable accommodations, including those listed in paragraphs (i)(1)

through (3) of this section.

(5) The temporary suspension of one or more essential functions of the position in

question, as defined in paragraph (g) of this section, is a reasonable accommodation if an

employee with a known limitation under the PWFA is unable to perform one or more

essential functions with or without a reasonable accommodation and the conditions set

forth in paragraph (f)(2) of this section are met.

(j) Undue hardship—(1) In general. Undue hardship means, with respect to the provision of an

accommodation, significant difficulty or expense incurred by a covered entity, when considered

in light of the factors set forth in paragraph (j)(2) of this section.

(2) Factors to be considered. In determining whether an accommodation would impose

an undue hardship on a covered entity, factors to be considered, with no one factor to be

dispositive, include:

(i) The nature and net cost of the accommodation needed under the PWFA;

(ii) The overall financial resources of the facility or facilities involved in the

provision of the reasonable accommodation, the number of persons employed at

such facility, and the effect on expenses and resources;

(iii) The overall financial resources of the covered entity, the overall size of the

business of the covered entity with respect to the number of its employees, and

the number, type, and location of its facilities;

(iv) The type of operation or operations of the covered entity, including the

composition, structure, and functions of the workforce of such entity, and the

geographic separateness and administrative or fiscal relationship of the facility or

facilities in question to the covered entity; and

(v) The impact of the accommodation upon the operation of the facility, including

the impact on the ability of other employees to perform their duties and the impact

on the facility’s ability to conduct business.

(3) Temporary suspension of an essential function(s). If an employee with a known

limitation under the PWFA meets the definition of “qualified employee” under paragraph

(f)(2) of this section and needs one or more essential functions of the relevant position to

be temporarily suspended, the covered entity must provide the accommodation unless

doing so would impose an undue hardship on the covered entity when considered in light

of the factors provided in paragraphs (j)(2)(i) through (v) of this section as well as the

following additional factors where they are relevant and with no one factor to be

dispositive:

(i) The length of time that the employee will be unable to perform the essential

function(s);

(ii) Whether, through the factors listed in paragraph (f)(2)(iii) of this section or

otherwise, there is work for the employee to accomplish;

(iii) The nature of the essential function(s), including its frequency;

(iv) Whether the covered entity has provided other employees in similar positions

who are unable to perform the essential function(s) of their position with

temporary suspensions of the essential function(s);

(v) If necessary, whether there are other employees, temporary employees, or

third parties who can perform or be hired to perform the essential function(s); and

(vi) Whether the essential function(s) can be postponed or remain unperformed

for any length of time and, if so, for how long.

(4) Predictable assessments. The individualized assessment of whether a modification

listed in paragraphs (j)(4)(i) through (iv) of this section is a reasonable accommodation

that would cause undue hardship will, in virtually all cases, result in a determination that

the four modifications are reasonable accommodations that will not impose an undue

hardship under the PWFA when they are requested as workplace accommodations by an

employee who is pregnant. Therefore, with respect to these modifications, the

individualized assessment should be particularly simple and straightforward:

(i) Allowing an employee to carry or keep water near and drink, as needed;

(ii) Allowing an employee to take additional restroom breaks, as needed;

(iii) Allowing an employee whose work requires standing to sit and whose work

requires sitting to stand, as needed; and

(iv) Allowing an employee to take breaks to eat and drink, as needed.

(k) Interactive process. Interactive process means an informal, interactive process between the

covered entity and the employee seeking an accommodation under the PWFA. This process

should identify the known limitation under the PWFA and the adjustment or change at work that

is needed due to the limitation, if either of these is not clear from the request, and potential

reasonable accommodations. There are no rigid steps that must be followed.

(l) Limits on supporting documentation. (1) A covered entity is not required to seek supporting

documentation. A covered entity may seek supporting documentation from an employee who

requests an accommodation under the PWFA only when it is reasonable under the circumstances

for the covered entity to determine whether the employee has a physical or mental condition

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a

limitation) and needs an adjustment or change at work due to the limitation. The following

situations are examples of when it is not reasonable under the circumstances to seek supporting

documentation:

(i) When the physical or mental condition related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions (a limitation), and the

adjustment or change at work needed due to the limitation are obvious and the

employee provides self-confirmation as defined in paragraph (l)(4) of this section;

(ii) When the employer already has sufficient information to determine whether

the employee has a physical or mental condition related to, affected by, or arising

out of pregnancy, childbirth, or related medical conditions (a limitation) and

needs an adjustment or change at work due to the limitation;

(iii) When the employee is pregnant and seeks one of the modifications listed in

paragraphs (j)(4)(i) through (iv) of this section due to a physical or mental

condition related to, affected by, or arising out of pregnancy (a limitation) and the

employee provides self-confirmation as defined in paragraph (l)(4) of this section;

(iv) When the reasonable accommodation is related to a time and/or place to

pump at work, other modifications related to pumping at work, or a time to nurse

during work hours (where the regular location of the employee’s workplace

makes nursing during work hours a possibility because the child is in close

proximity), and the employee provides self-confirmation, as defined in paragraph

(l)(4) of this section; or

(v) When the requested accommodation is available to employees without known

limitations under the PWFA pursuant to a covered entity’s policies or practices

without submitting supporting documentation.

(2) When it is reasonable under the circumstances, based on paragraph (l)(1) of this

section, to seek supporting documentation, the covered entity is limited to seeking

reasonable documentation.

(i) Reasonable documentation means the minimum that is sufficient to:

(A) Confirm the physical or mental condition (i.e., an impediment or problem that

may be modest, minor, and/or episodic; a need or a problem related to

maintaining the employee’s health or the health of the pregnancy; or an employee

seeking health care related to pregnancy, childbirth, or a related medical condition

itself) whether or not such condition meets the definition of disability specified in

section 3 of the Americans with Disabilities Act of 1990, 42 U.S.C. 12102;

(B) Confirm that the physical or mental condition is related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions (together with

paragraph (l)(2)(i)(A) of this section, “a limitation”); and

limitation.

(ii) Covered entities may not require that supporting documentation be submitted

on a specific form.

(3) When it is reasonable under the circumstances, based on paragraph (l)(1) of this

section, to seek supporting documentation, a covered entity may require that the

reasonable documentation comes from a health care provider, which may include, but

is not limited to: doctors, midwives, nurses, nurse practitioners, physical therapists,

lactation consultants, doulas, occupational therapists, vocational rehabilitation

specialists, therapists, industrial hygienists, licensed mental health professionals,

psychologists, or psychiatrists. The health care provider may be a telehealth provider.

The covered entity may not require that the health care provider submitting

documentation be the provider treating the condition at issue. The covered entity may

not require that the employee seeking the accommodation be examined by a health

care provider selected by the covered entity.

(4) Self-confirmation means a simple statement where the employee confirms, for

purposes of paragraph (l)(1)(i), (iii), or (iv) of this section, the physical or mental

condition related to, affected by, or arising out of pregnancy, childbirth, or related

medical conditions (a limitation), and the adjustment or change at work needed due to the

limitation. The statement can be made in any manner and can be made as part of the

request for reasonable accommodation under paragraph (h)(2) of this section. A covered

entity may not require that the statement be in a specific format, use specific words, or be

on a specific form.

§ 1636.4 Nondiscrimination with regard to reasonable accommodations related to

pregnancy.

(a) It is an unlawful employment practice for a covered entity not to make reasonable

accommodations to the known limitations related to the pregnancy, childbirth, or related medical

conditions of a qualified employee, unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of the business of such

covered entity.

(1) An unnecessary delay in providing a reasonable accommodation to the known

limitations related to the pregnancy, childbirth, or related medical conditions of a

qualified employee may result in a violation of the PWFA, 42 U.S.C. 2000gg–1(1), even

if the covered entity eventually provides the reasonable accommodation. In determining

whether there has been an unnecessary delay, factors to be considered, with no one factor

to be dispositive, include:

(i) The reason for the delay;

(ii) The length of the delay;

(iii) The length of time that the accommodation is needed. If the accommodation

is needed for a short time, unnecessary delay in providing it may effectively mean

failure to provide the accommodation;

(iv) How much the employee and the covered entity each contributed to the delay;

(v) Whether the covered entity was engaged in actions related to the reasonable

accommodation request during the delay;

(vi) Whether the accommodation was or would be simple or complex to provide.

There are certain accommodations, set forth in § 1636.3(j)(4), that are common

and easy to provide. Delay in providing these accommodations will virtually

always result in a finding of unnecessary delay; and

(vii) Whether the covered entity offered the employee an interim reasonable

accommodation during the interactive process or while waiting for the covered

entity’s response. For the purposes of this factor, the interim reasonable

accommodation should be one that allows the employee to continue working.

Leave will not be considered an interim reasonable accommodation supporting

this factor, unless the employee selects or requests leave as an interim reasonable

accommodation.

(2) An employee with known limitations related to pregnancy, childbirth, or related

medical conditions is not required to accept an accommodation. However, if such

employee rejects a reasonable accommodation that is necessary to enable the employee to

perform an essential function(s) of the position held or desired or to apply for the

position, or rejects the temporary suspension of an essential function(s) if the employee is

qualified under § 1636.3(f)(2), and, as a result of that rejection, cannot perform an

essential function(s) of the position, or cannot apply, the employee will not be considered

“qualified.”

(3) A covered entity cannot justify failing to provide a reasonable accommodation or the

unnecessary delay in providing a reasonable accommodation to a qualified employee

with known limitations related to pregnancy, childbirth, or related medical conditions

based on the employee failing to provide supporting documentation, unless:

(i) The covered entity seeks the supporting documentation;

(ii) Seeking the supporting documentation is reasonable under the circumstances

as set out in § 1636.3(l)(1);

(iii) The supporting documentation is “reasonable documentation” as defined in §

1636.3(l)(2); and

(iv) The covered entity provides the employee sufficient time to obtain and

provide the supporting documentation.

(4) When choosing among effective accommodations, the covered entity must choose an

accommodation that provides the qualified employee with known limitations related to

pregnancy, childbirth, or related medical conditions equal employment opportunity to

attain the same level of performance, or to enjoy the same level of benefits and privileges

as are available to the average employee without a known limitation who is similarly

situated. The similarly situated average employee without a known limitation may

include the employee requesting an accommodation at a time prior to communicating the

limitation.

(b) It is an unlawful employment practice for a covered entity to require a qualified employee

affected by pregnancy, childbirth, or related medical conditions to accept an accommodation

other than any reasonable accommodation arrived at through the interactive process referred to in

42 U.S.C. 2000gg(7) and described in § 1636.3(k).

to a qualified employee if such denial is based on the need, or potential need, of the covered

entity to make reasonable accommodations to the known limitations related to the pregnancy,

childbirth, or related medical conditions of the qualified employee.

(d) It is an unlawful employment practice for a covered entity:

(1) To require a qualified employee to take leave, whether paid or unpaid, if another

reasonable accommodation can be provided to the known limitations related to the

pregnancy, childbirth, or related medical conditions of the qualified employee that does

not result in an undue hardship for the covered entity; but

(2) Nothing in paragraph (d)(1) of this section prohibits leave as a reasonable

accommodation if that is the reasonable accommodation requested or selected by the

employee, or if it is the only reasonable accommodation that does not cause an undue

hardship.

(e) It is an unlawful employment practice for a covered entity:

(1) To take adverse action in terms, conditions, or privileges of employment against a

qualified employee on account of the employee requesting or using a reasonable

accommodation to the known limitations related to the pregnancy, childbirth, or related

medical conditions of the employee.

(2) Nothing in paragraph (e)(1) of this section limits the rights available under 42 U.S.C.

2000gg–2(f).

§ 1636.5 Remedies and enforcement.

(a) Employees covered by Title VII of the Civil Rights Act of 1964—(1) In general. The powers,

remedies, and procedures provided in sections 705, 706, 707, 709, 710, and 711 of the Civil

Rights Act of 1964, 42 U.S.C. 2000e–4 et seq., to the Commission, the Attorney General, or any

person alleging a violation of Title VII of such Act, 42 U.S.C. 2000e et seq., shall be the powers,

remedies, and procedures the PWFA provides to the Commission, the Attorney General, or any

person, respectively, alleging an unlawful employment practice in violation of the PWFA against

an employee described in 42 U.S.C. 2000gg(3)(A), except as provided in paragraphs (a)(2) and

(3) of this section.

(2) Costs and fees. The powers, remedies, and procedures provided in subsections (b) and

and procedures the PWFA provides to the Commission, the Attorney General, or any

person alleging such practice.

(3) Damages. The powers, remedies, and procedures provided in section 1977A of the

Revised Statutes, 42 U.S.C. 1981a, including the limitations contained in subsection

(b)(3) of such section 1977A, shall be the powers, remedies, and procedures the PWFA

provides to the Commission, the Attorney General, or any person alleging such practice

(not an employment practice specifically excluded from coverage under section

1977A(a)(1) of the Revised Statutes, 42 U.S.C. 1981a(a)(1)).

(b) [Reserved]

remedies, and procedures provided in chapter 5 of title 3, United States Code, to the President,

the Commission, the Merit Systems Protection Board, or any person alleging a violation of

section 411(a)(1) of such title shall be the powers, remedies, and procedures this section provides

to the President, the Commission, the Board, or any person, respectively, alleging an unlawful

employment practice in violation of this section against an employee described in 42 U.S.C.

2000gg(3)(C), except as provided in paragraphs (c)(2) and (3) of this section.

(2) Costs and fees. The powers, remedies, and procedures provided in subsections (b) and

and procedures this section provides to the President, the Commission, the Board, or any

person alleging such practice.

(3) Damages. The powers, remedies, and procedures provided in section 1977A of the

Revised Statutes, 42 U.S.C. 1981a, including the limitations contained in subsection

(b)(3) of such section 1977A, shall be the powers, remedies, and procedures this section

provides to the President, the Commission, the Board, or any person alleging such

practice (not an employment practice specifically excluded from coverage under section

1977A(a)(1) of the Revised Statutes, 42 U.S.C. 1981a(a)(1)).

(d) Employees covered by Government Employee Rights Act of 1991—(1) In general. The

powers, remedies, and procedures provided in sections 302 and 304 of the Government

Employee Rights Act of 1991, 42 U.S.C. 2000e–16b and 2000e–16c, to the Commission or any

person alleging a violation of section 302(a)(1) of such Act, 42 U.S.C. 2000e–16b(a)(1), shall be

the powers, remedies, and procedures the PWFA provides to the Commission or any person,

respectively, alleging an unlawful employment practice in violation of the PWFA against an

employee described in 42 U.S.C. 2000gg(3)(D), except as provided in paragraphs (d)(2) and (3)

of this section.

(2) Costs and fees. The powers, remedies, and procedures provided in subsections (b) and

and procedures the PWFA provides to the Commission or any person alleging such

practice.

(3) Damages. The powers, remedies, and procedures provided in section 1977A of the

Revised Statutes, 42 U.S.C. 1981a, including the limitations contained in subsection

(b)(3) of such section 1977A, shall be the powers, remedies, and procedures the PWFA

provides to the Commission or any person alleging such practice (not an employment

practice specifically excluded from coverage under section 1977A(a)(1) of the Revised

Statutes, 42 U.S.C. 1981a(a)(1)).

(e) Employees covered by Section 717 of the Civil Rights Act of 1964—(1) In general. The

powers, remedies, and procedures provided in section 717 of the Civil Rights Act of 1964, 42

U.S.C. 2000e–16, to the Commission, the Attorney General, the Librarian of Congress, or any

person alleging a violation of that section shall be the powers, remedies, and procedures the

PWFA provides to the Commission, the Attorney General, the Librarian of Congress, or any

person, respectively, alleging an unlawful employment practice in violation of the PWFA against

an employee described in 42 U.S.C. 2000gg(3)(E), except as provided in paragraphs (e)(2) and

(3) of this section.

(2) Costs and fees. The powers, remedies, and procedures provided in subsections (b) and

and procedures the PWFA provides to the Commission, the Attorney General, the

Librarian of Congress, or any person alleging such practice.

(3) Damages. The powers, remedies, and procedures provided in section 1977A of the

Revised Statutes, 42 U.S.C. 1981a, including the limitations contained in subsection

(b)(3) of such section 1977A, shall be the powers, remedies, and procedures the PWFA

provides to the Commission, the Attorney General, the Librarian of Congress, or any

person alleging such practice (not an employment practice specifically excluded from

coverage under section 1977A(a)(1) of the Revised Statutes, 42 U.S.C. 1981a(a)(1)).

(f) Prohibition against retaliation—(1) Prohibition against retaliation. No person shall

discriminate against any employee because such employee has opposed any act or practice made

unlawful by the PWFA or because such employee made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under the PWFA.

(i) An employee need not be a qualified employee with a known limitation under

the PWFA to bring an action under this paragraph (f)(1).

(ii) A request for reasonable accommodation for a known limitation under the

PWFA constitutes protected activity under this paragraph (f)(1).

(iii) An employee does not actually have to be deterred from exercising or

enjoying rights under the PWFA in order for the retaliation to be actionable.

(2) Prohibition against coercion. It shall be unlawful to coerce, intimidate, threaten,

harass, or interfere with any individual in the exercise or enjoyment of, or on account of

such individual having exercised or enjoyed, or on account of such individual having

aided or encouraged any other individual in the exercise or enjoyment of, any right

granted or protected by the PWFA.

(i) An individual need not be a qualified employee with a known limitation under

the PWFA to bring an action under this paragraph (f)(2).

(ii) An individual does not actually have to be deterred from exercising or

enjoying rights under the PWFA for the coercion, intimidation, threats,

harassment, or interference to be actionable.

(3) Remedy. The remedies and procedures otherwise provided for under this section shall

be available to aggrieved individuals with respect to violations of this section regarding

retaliation or coercion.

(g) Limitation on monetary damages. Notwithstanding paragraphs (a)(3), (c)(3), (d)(3), and

(e)(3) of this section, if an unlawful employment practice involves the provision of a reasonable

accommodation pursuant to the PWFA or this part, damages may not be awarded under section

1977A of the Revised Statutes, 42 U.S.C. 1981a, if the covered entity demonstrates good faith

efforts, in consultation with the qualified employee with known limitations related to, affected

by, or arising out of pregnancy, childbirth, or related medical conditions who has informed the

covered entity that accommodation is needed, to identify and make a reasonable accommodation

that would provide such employee with an equally effective opportunity and would not cause an

undue hardship on the operation of the business of the covered entity.

§ 1636.6 Waiver of State immunity.

A State shall not be immune under the 11th

Amendment to the Constitution from an action in a

Federal or State court of competent jurisdiction for a violation of the PWFA. In any action

against a State for a violation of the PWFA, remedies (including remedies both at law and in

equity) are available for such a violation to the same extent such remedies are available for such

a violation in an action against any public or private entity other than a State.

§ 1636.7 Relationship to other laws.

(a) In general. (1) The PWFA and this part do not invalidate or limit the powers, remedies, and

procedures under any Federal law, State law, or the law of any political subdivision of any State

or jurisdiction that provides greater or equal protection for individuals affected by pregnancy,

childbirth, or related medical conditions.

(2) The PWFA and this part do not require an employer-sponsored health plan to pay for

or cover any particular item, procedure, or treatment, or affect any right or remedy

available under any other Federal, State, or local law with respect to any such payment or

coverage requirement.

(b) Rule of construction. The PWFA and this part are subject to the applicability to religious

employment set forth in section 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e–1(a).

(1) Nothing in 42 U.S.C. 2000gg–5(b) or this part should be interpreted to limit a covered

entity’s rights under the U.S. Constitution.

(2) Nothing in 42 U.S.C. 2000gg–5(b) or this part should be interpreted to limit an

employee’s rights under other civil rights statutes.

§ 1636.8 Severability.

(a) The Commission intends that, if any provision of the PWFA or the application of that

provision to particular persons or circumstances is held invalid or found to be unconstitutional,

the remainder of the statute and the application of that provision to other persons or

circumstances shall not be affected.

(b) The Commission intends that, if any provision of this part that uses the same language as the

statute, or the application of that provision to particular persons or circumstances, is held invalid

or found to be unconstitutional, the remainder of this part and the application of that provision to

other persons or circumstances shall not be affected.

appendix A to this part that provides additional guidance to implement the PWFA, including

examples of reasonable accommodations, or the application of that provision to particular

persons or circumstances, is held invalid or found to be unconstitutional, the remainder of this

part or the interpretive guidance and the application of that provision to other persons or

circumstances shall not be affected.

Appendix A to Part 1636—Interpretive Guidance on the Pregnant Workers Fairness Act

I. Introduction

1. The Pregnant Workers Fairness Act (PWFA) requires a covered entity to provide

reasonable accommodations to a qualified employee’s known limitation related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the

operation of the business of the covered entity. Although employees affected by pregnancy,

childbirth, or related medical conditions have certain rights under existing civil rights laws,

including Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy

Discrimination Act of 1978 (PDA), 42 U.S.C. 2000e et seq., and the Americans with Disabilities

Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA or

Amendments Act), 42 U.S.C. 12111 et seq.,

Congress determined that the legal protections

offered by these two statutes, particularly as interpreted by the courts, were “insufficient to ensure

that pregnant workers receive the accommodations they need.”

2. The PWFA, at 42 U.S.C. 2000gg–3, directs the U.S. Equal Employment Opportunity

Commission (EEOC or Commission) to promulgate regulations to implement the PWFA.

References to the ADA throughout this part and the Interpretive Guidance in this appendix are intended to apply

equally to the Rehabilitation Act of 1973, as all nondiscrimination standards under title I of the ADA also apply to

Federal agencies under section 501 of the Rehabilitation Act. See 29 U.S.C. 791(f).

H.R. Rep. No. 117-27, pt. 1, at 12 (2021).

3. This Interpretive Guidance addresses the major provisions of the PWFA and its

regulation and explains the major concepts pertaining to nondiscrimination with respect to

reasonable accommodations for known limitations (physical or mental conditions related to,

affected by, or arising out of pregnancy, childbirth, or related medical conditions) under the

statute. The Interpretive Guidance represents the Commission’s interpretation of the issues

addressed within it, and the Commission will be guided by the regulation and the Interpretive

Guidance when enforcing the PWFA.

II. General Information and Terms Used in the Regulation and Interpretive Guidance

1. The PWFA at 42 U.S.C. 2000gg(3) uses the term “employee (including an applicant)” in

its definition of “employee.”

Thus, throughout the statute, the final regulation, and this

Interpretive Guidance, the term “employee” should be understood to include “applicant” where

relevant. Because the PWFA relies on Title VII for its definition of “employee,” that term also

includes “former employee,” where relevant.

The PWFA defines “covered entity” using the

definition of “employer” from different statutes, including Title VII.

Thus “covered entities”

under the PWFA include public or private employers with 15 or more employees, unions,

employment agencies, and the Federal Government.

In the regulation and this Interpretive

Guidance, the Commission uses the terms “covered entity” and “employer” interchangeably.

2. This Interpretive Guidance contains many examples to illustrate situations under the

PWFA. The examples do not, and are not intended to, cover every limitation or possible

42 U.S.C. 2000gg(3).

Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

42 U.S.C. 2000gg(2)(A), (B)(i), (B)(iii), (B)(iv). The other statutes are the Congressional Accountability Act of

1995 and 3 U.S.C. 411(c).

The statute at 42 U.S.C. 2000gg(2) provides that the term “covered entity” has the meaning given the term

“respondent” under 42 U.S.C. 2000e(n) and includes employers as defined in 42 U.S.C. 2000e(b), 2000e–16c(a),

and 2000e–16(a). The statute at 42 U.S.C. 2000gg–5(b) provides as a rule of construction that the chapter is subject

to the applicability to religious employment set forth in 42 U.S.C. 2000e–1(a) [section 702(a) of the Civil Rights Act

of 1964].

accommodation under the PWFA. Depending on the facts in the examples, the same facts could

lead to claims also being brought under other statutes that the Commission enforces, such as

Title VII and the ADA. Moreover, the situations in specific examples could implicate other

Federal laws, including, but not limited to, the Family and Medical Leave Act of 1993, 29 U.S.C.

2601 et seq. (FMLA); the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (OSH Act);

and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (Pub. L.

117-328, Div. KK, 136 Stat. 4459, 6093 (2022)).

Finally, although some examples state that the

described actions “would violate” the PWFA, additional facts not described in the examples

could change that determination.

III. 1636.3 Definitions—Specific to the PWFA

1636.3(a) Known Limitation

1. Section 1636.3(a) reiterates the definition of “known limitation” from 42 U.S.C.

2000gg(4) of the PWFA and then provides definitions for the operative terms.

1636.3(a)(1) Known

2. Paragraph (a)(1) adopts the definition of “known” from the PWFA and thus defines it to

mean that the employee, or the employee’s representative, has communicated the limitation to

the covered entity.

To the extent that an accommodation in an example is required under another law, like the OSH Act, the example

should not be read to suggest that such a requirement is not applicable.

In this part and the Interpretive Guidance, the Commission uses the terms ‘‘leave’’ and ‘‘time off’’ and intends

those terms to cover leave however it is identified by the specific employer. Additionally, in this part and the

Interpretive Guidance, the Commission uses the term “light duty.” The Commission recognizes that “light duty”

programs, or other programs providing modified duties, can vary depending on the covered entity. See EEOC,

Enforcement Guidance: Workers’ Compensation and the ADA, text preceding Question 27 (1996) [hereinafter

Enforcement Guidance: Workers’ Compensation], https://www.eeoc.gov/laws/guidance/enforcement-guidance-

workers-compensation-and-ada. The Commission intends “light duty” to include the types of programs included in

Questions 27 and 28 of the Enforcement Guidance: Workers’ Compensation and any other policy, practice, or

system that a covered entity has for accommodating employees, including when one or more essential functions of a

position are temporarily excused.

42 U.S.C. 2000gg(4).

1636.3(a)(2) Limitation

3. Paragraph (a)(2) adopts the definition of “limitation” from the PWFA and thus defines it

to mean a physical or mental condition related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions.

The limitation must be of the specific employee in

question. The “physical or mental condition” that is the limitation may be a modest, minor,

and/or episodic impediment or problem. The definition encompasses when an employee affected

by pregnancy, childbirth, or related medical conditions has a need or a problem related to

maintaining their health or the health of the pregnancy.

4. The definition of “limitation” also includes when an employee is seeking health care

related to the pregnancy, childbirth, or a related medical condition itself. Under the ADA, when

an individual has an actual or a record of a disability, employers often may be required to

provide the reasonable accommodation of leave so that an employee can obtain medical

treatment.

Similarly, under the PWFA, an employee may require a reasonable accommodation

of leave to attend health care appointments or receive treatment for or recover from their

pregnancy, childbirth, or related medical conditions.

In passing the PWFA, Congress sought, in

Id.

In § 1636.3(a)(2) and the Interpretive Guidance, the Commission uses the phrase “maintaining their health or the

health of the pregnancy.” This includes avoiding risk to the employee’s health or to the health of the pregnancy.

EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, at text after

n.49 (2002) [hereinafter Enforcement Guidance on Reasonable Accommodation],

http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-

ada.

See, e.g., U.S. Dep’t of Health & Hum. Servs., Off. of Women’s Health, Prenatal Care,

https://www.womenshealth.gov/a-z-topics/prenatal-care (last updated Feb. 22, 2021) (stating that during pregnancy

usually visits are once a month until week 28, twice a month from weeks 28–36 and once a week from week 36 to

birth); Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 736, Optimizing Postpartum Care (reaff’d

2021), https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-

care (stating the importance of regular postpartum care); and Opinion No. 826, Protecting and Expanding Medicaid

to Improve Women’s Health (2021), https://www.acog.org/clinical/clinical-guidance/committee-

opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health (encouraging the

expansion of Medicaid to improve postpartum care).

part, to help pregnant employees maintain their health.

Thus, the PWFA covers situations when

an employee requests an accommodation in order to maintain their health or the health of their

pregnancy and avoid negative consequences, and when an employee seeks health care for their

pregnancy, childbirth, or related medical conditions. Practically, allowing for accommodations to

maintain health and attend medical appointments may decrease the need for a more extensive

accommodation because the employee may be able to avoid more serious complications.

5. The physical or mental condition (the limitation) required to trigger the obligation to

provide a reasonable accommodation under the PWFA does not need to meet the definition of a

“disability” under the ADA.

In other words, an employee need not have an impairment that

substantially limits a major life activity to be entitled to a reasonable accommodation under the

PWFA, nor does an employee need to have an “impairment” as defined in the regulation

implementing the ADA.

The PWFA can cover physical or mental conditions that also are

covered under the ADA. In these situations, an individual may be entitled to an accommodation

under the ADA as well as the PWFA.

6. The PWFA does not create a right to reasonable accommodation based on an individual’s

association with someone else who may have a PWFA-covered limitation. Nor is a qualified

employee entitled to accommodation because they have a physical or mental condition related to,

See Markup of the Paycheck Fairness Act; Pregnant Workers Fairness Act; Workplace Violence Prevention for

Health Care and Social Service Workers Act, YouTube (2021), at 54:46 (statement of Rep. Kathy E. Manning)

(stating that a goal of the PWFA is to help pregnant workers “deliver healthy babies while maintaining their jobs”);

at 21:50 (statement of Rep. Robert C. Scott) (“[W]ithout [these] basic protections, too many workers are forced to

choose between a healthy pregnancy and their paychecks.”); at 1:35:01 (statement of Rep. Lucy McBath) (“[N]o

mother should ever have to choose between the health of herself/themselves and their child or a paycheck.”); and at

1:37:38 (statement of Rep. Suzanne Bonamici) (“[P]regnant workers should not have to choose between a healthy

pregnancy and a paycheck.”), https://www.youtube.com/watch?v=p6Ie2S9sTxs; see also H.R. Rep. No. 117-27, pt.

1, at 12 (workers whose pregnancy-related impairments substantially limit a major life activity are covered by the

ADA; “this standard leaves women with less serious pregnancy-related impairments, and who need

accommodations, without legal recourse”); id. at 22–23 (accommodations are frequently needed by, and should be

provided to, people with healthy pregnancies); id. at 23 (example of an “uneventful pregnancy” in which a woman

needed more bathroom breaks); id. at 14–21 (outlining the gaps created by court interpretations of Title VII and the

ADA that the PWFA is intended to fill so that pregnant workers can receive reasonable accommodations); id. at 56

(noting that a “minor limitation” can be covered because it presumably requires only minor accommodations).

42 U.S.C. 2000gg(4).

See 29 CFR 1630.2(h).

affected by, or arising out of someone else’s pregnancy, childbirth, or related medical conditions.

For example, a spouse experiencing anxiety due to a partner’s pregnancy is not covered by the

PWFA. Time for bonding or time for childcare also is not covered by the PWFA.

7. Whether an employee has a “physical or mental condition related to, affected by, or

arising out of pregnancy, childbirth, or related medical conditions” shall be construed broadly to

the maximum extent permitted by the PWFA.

Related to, Affected by, or Arising Out of

8. The PWFA’s use of the inclusive terms “related to, affected by, or arising out of”

means that pregnancy, childbirth, or related medical conditions do not need to be the sole, the

original, or a substantial cause of the physical or mental condition at issue for the physical or

mental condition to be “related to, affected by, or arising out of” pregnancy, childbirth, or related

medical conditions.

9. Whether a physical or mental condition is related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions will be apparent in the majority of cases.

Pregnancy and childbirth cause systemic changes that not only create new physical and mental

conditions but also can exacerbate preexisting conditions and can cause additional pain or risk.

Thus, a connection between an employee’s physical or mental condition and their pregnancy,

childbirth, or related medical conditions will be readily ascertained when an employee is

currently pregnant or the employee is experiencing or has just experienced childbirth.

The statute at 42 U.S.C. 2000gg(4) defines the term “known limitation” as a physical or mental condition related

to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Most of the prohibited acts in

the statute, however, use the phrase “known limitations related to the pregnancy, childbirth, or related medical

conditions.” See 42 U.S.C. 2000gg–1(1), (3)–(5). Thus, the Commission will define “related to, affected by, or

arising out of” as one phrase and will not attempt to define each of the parts of it separately.

See, e.g., Danforth’s Obstetrics & Gynecology 286 (Ronald S. Gibbs et al. eds., 10th ed. 2008) (“Normal

pregnancy entails many physiologic changes . . . .”); Clinical Anesthesia 1138 (Paul G. Barash et al. eds., 6th ed.

2009) (“During pregnancy, there are major alterations in nearly every maternal organ system.”)

10. For example, if an employee is pregnant and as a result has pain when standing for long

periods of time, the employee’s physical or mental condition (pain when standing for a

protracted period) is related to, affected by, or arising out of the employee’s pregnancy. An

employee who is pregnant and because of the pregnancy cannot lift more than 20 pounds has a

physical condition related to, affected by, or arising out of pregnancy, because lifting is

associated with low back pain and musculoskeletal disorders that may be exacerbated by

physical changes associated with pregnancy.

An employee who is pregnant and seeks time off

for prenatal health care appointments is attending medical appointments related to, affected by,

or arising out of pregnancy. An employee who requests an accommodation to attend therapy

appointments for postpartum depression has a medical condition related to pregnancy or

childbirth (postpartum depression) and is obtaining health care related to, affected by, or arising

out of a related medical condition. A pregnant employee who is seeking an accommodation to

limit exposure to secondhand smoke to protect the health of their pregnancy has a physical or

mental condition (trying to maintain the employee’s health or the health of their pregnancy, or to

address increased sensitivity to secondhand smoke) related to, affected by, or arising out of

pregnancy. A lactating employee who seeks an accommodation to take breaks to eat has a related

medical condition (lactation) and a physical condition related to, affected by, or arising out of it

(increased nutritional needs). A pregnant employee seeking time off in order to have an

amniocentesis procedure is attending a medical appointment related to, affected by, or arising out

of pregnancy. An employee who requests leave for in vitro fertilization (IVF) treatment for the

employee to get pregnant has a limitation, either related to potential or intended pregnancy or a

medical condition related to pregnancy (difficulty in becoming pregnant or infertility), and is

seeking health care related to, affected by, or arising out of it. An employee whose pregnancy is

Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 733, Employment Considerations During

Pregnancy and the Postpartum Period (reaff’d 2023), https://www.acog.org/clinical/clinical-guidance/committee-

opinion/articles/2018/04/employment-considerations-during-pregnancy-and-the-postpartum-period.

causing fatigue has a physical condition (fatigue) related to, affected by, or arising out of

pregnancy. An employee whose pregnancy is causing back pain has a physical condition (back

pain) related to, affected by, or arising out of pregnancy. This is not by any means a complete list

of physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or

related medical conditions, but rather a discussion of examples to illustrate application of the

legal rule.

11. The Commission recognizes that some physical or mental conditions (which can be

“limitations” as defined by the PWFA

), including some of those in the examples in paragraph

10 of this section, may occur even if they are not related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions (e.g., attending medical appointments,

increased nutritional needs, constraints on lifting). The Commission anticipates that confirming

whether a physical or mental condition is related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions usually will be straightforward and can be accomplished

through the interactive process. If a physical or mental condition is not covered by the PWFA, it

may be that the physical or mental condition constitutes a disability that is covered by the ADA.

12. There may be situations where a physical or mental condition begins as something that is

related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and,

once the pregnancy, childbirth, or related medical conditions resolve, the physical or mental

condition remains, evolves, or worsens. To confirm whether the employee’s physical or mental

condition is still related to, affected by, or arising out of pregnancy, childbirth, or related medical

conditions, the employer and the employee can engage in the interactive process.

13. There will be situations where an individual with a physical or mental condition that is no

longer related to, affected by, or arising out of pregnancy, childbirth, or related medical

42 U.S.C. 2000gg(4) (providing that a “known limitation” is a physical or mental condition related to, affected by,

or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative

has communicated to the employer).

conditions has an “actual” or “record of” disability under the ADA. In those situations, an

individual may seek an accommodation under the ADA and the reasonable accommodation

process would follow the ADA.

14. Finally, there may be situations where the pregnancy, childbirth, or related medical

conditions exacerbate existing conditions that may be disabilities under the ADA. In those

situations, an employee can seek an accommodation under the PWFA or the ADA, or both

statutes.

1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions

15. The PWFA uses the term “pregnancy, childbirth, or related medical conditions,” which

appears in Title VII’s definition of “sex.”

Because Congress chose to write the PWFA using the

same language as Title VII, § 1636.3(b) gives the term “pregnancy, childbirth, or related medical

conditions” the same meaning as under Title VII.

16. The non-exhaustive list of examples in § 1636.3(b) for the definition of “pregnancy” and

“childbirth” includes current pregnancy, past pregnancy, potential or intended pregnancy (which

See, e.g., 29 CFR 1630.2(o)(3); 29 CFR part 1630, appendix, 1630.2(o)(3) and 1630.9.